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LIBRIS 


WILLIAM   BLOUNT, 
President  of  Convention  of  1796. 


STUDIES 


IN  THE 


Constitutional  History  of  Tennessee. 


BY 

JOSHUA   W.   CALDWELL. 


CINCINNATI: 
THE  ROBERT  CLARKE  COMPANY. 

1895. 


COPYRIGHT,  1895, 
BvTHE  ROBERT  CLARKE  COMPANY. 


PREFACE. 


This  book  is  composed  of  a  series  of  short  stud- 
ies of  certain  aspects  of  the  political  life  of  Ten- 
nessee. It  does  not  aspire  to  the  dignity  nor  to  the 
completeness  of  a  constitutional  history  of  the  State. 
Its  substance  was  printed  in  the  Spring  of  1895,  in 
the  Knoxville  Tribune,  through  the  kindness  of  W. 
C.  Tatom,  the  accomplished  editor  of  that  paper. 
The  articles  were  written  in  aid  of  an  effort  for  a 
Constitutional  Convention,  although  they  were  es- 
sentially historical  and  not  controversial.  The 
writer  has  yielded  perhaps  too  readily  to  the  sugges- 
tion of  friends,  that  they  are  worthy  of  perma- 
nent form.  The  book  is  presented  with  very  few 
changes  from  the  original  articles.  They  were 
composed  largely  of  general  statements  and  sug- 
gestions, and  it  may  be  thought  that  at  times  these 
statements  are  extreme.  For  example,  much  stress 
is  laid  upon  the  influence  of  the  Scotch-Irish  in  early 
Tennessee  history,  and  it  may  seem  that  too  much 
is  attributed  to  them,  but  it  was  the  purpose  of  the 

(iii) 

273104 


17  PREFACE. 

writer  to  look  only  to  general  features  and  con- 
trolling forces,  without  going  into  historical  detail 
more  than  was  absolutely  necessary.  The  book  is 
an  effort  to  indicate  the  origin  and  operation  of  the 
forces  which  have  shaped  the  social  and  political 
life  of  Tennessee.  The  State  has  a  distinct,  unique, 
and  important  constitutional  history,  and  it  is  to 
be  hoped  that  one  day  it  will  find  a  competent  his- 
torian. 

The  writer's  thanks  are  due  to  General  Marcus  J. 
"W right,  of  Washington,  D.  C.,  Mrs.  John  C.  Brown, 
of  Pulaski,  Tenn.,  the  Hon.  W.  S.  Morgan,  Secre- 
tary of  State,  Nashville,  and  Mr.  Edward  T.  San- 
ford  and  Major  Hunter  Nicholson,  of  Knoxville,  for 
valuable  assistance  in  his  work.  He  wishes  to  ac- 
knowledge also  that  in  stating  the  defects  of  the 
Constitution  of  1870  he  has  availed  himself  freely 
of  valuable  publications  on  that  subject  by  W. 
B.  Swaney,  of  Chattanooga,  and  James  H.  Malone, 
of  Memphis. 

KNOXVILLE,  TENN.,  Sept.,  1895. 


TABLE   OF    CONTENTS. 


CHAPTER  I. 

THE   WATAUGA   ASSOCIATION. 

1772-1777. 

PAGE 

Opinions  as  to  the  origins  of  American  institutions 1-2 

English  and  American  writers  on  the  subject 2 

Douglas  Campbell's  claims  for  the  Dutch 3 

New  England  was  English — old  English 3 

Virginia  institutions  modern  English 3 

Massachusetts  Township  and  Virginia  County 4-5 

Influence  of  slavery  and  tobacco  in  Virginia 5 

Ninety-eight  per  cent  of  white  people  of  Virginia  P^nglish.  5 
Tennessee  belonged  to  North  Carolina,  in  the  Virginia 

group 6 

Origins  of  population  and  institutions  of  North  Carolina.  6 

The  Scotch-Irish,  of  the  English  political  family 7 

The  coming  of  the  Scotch-Irish 7-8 

First  Watauga  settlers  were  from  North  Carolina  and 

Virginia 9 

They  believed  they  were  in  Virginia 9 

The  mistake  discovered  in  1771 9 

The  Watauga  Association  was  an  Anglo-Saxon  institution.  11 
The  first  concrete  manifestation  of  the  American  spirit  of 

independence 11 

(v) 


VI  TABLE   OF   CONTENTS. 

PAGE 

Bancroft  on  Watauga 11 

The  Association  organized  1772 11 

The  leaders,  Carter,  Sevier,  Eobertson 12 

The  Scotch-Irish  Presbyterians  predominated 12 

The  settlers  were  plain  people  as  a  rule 13 

Manners  and  morals 14 

The  institutions  of  Tennessee  pure  Anglo-Saxon 15 

The  rule  of  the  first  settlers  perpetuated 15 

The  great  names  in  the  State's  history  are  Scotch-Irish 16 

The  Watauga  articles  lost  or  destroyed 16 

Hay  wood  and  Ramsey  on  the  Association 16-17 

Roosevelt's  comments 17 

The  Committee  of  thirteen  and  the  Court  of  five . 17 

General  view  of  the  Watauga  polity 17-18-19 

Watauga  and  Carter's  Valley  first  in  the  Association. 

Brown's  afterward 18 

The  Association  existed  for  about  six  years 18 

It  exercised  the  usual  functions  of  sovereignty 18 

The  reasons  given  for  creating  the  Association 19 

Deeds,  wills  and  marriage  licenses 19 

Universal  suffrage  and  religious  liberty 20-21 

The  organization  of  the  Court  of  five 21 

The  Military  establishment 22 

The  Committee  of  Thirteen 22 

The  Association  expired  1777 23 

The  first  independent  government  created  by  men  of 

American  birth 24-25 

The  Fundamental  orders  of  Connecticut 25-26 

The  people  must  have  known  they  belonged  to  North 

Carolina 27 


TABLE   OF   CONTENTS.  Vll 

PAGE 

The  petition  of  1776 28 

The  Association,  the  most  important  fact  in  early  South- 
western history 29 

The  movement  was  not  in  opposition  to  the  Crown 29 

The  people  did  not  wish  nor  intend  to  separate  from 

England 29 

They  acted  from  necessity 30 

The  episode  loses  no  importance  by  this  construction 30 

Watauga  the  first  to  give  English  principles  full  scope 31 

Watauga  not  a  leader,  but  a  forerunner 32 

The  whole  country  was  ripe  for  manifestation  of  American- 
ism    32 

Watauga  happened  to  be  the  first  to  establish  institutions.  32 
The  people  were  more  independent  than  those  of  other 

settlements..  32 


CHAPTER  II. 

CUMBERLAND. 
1780-1783. 

James  Robertson  the  leader 34 

Robertson's  character 34-35 

Three  other  Watauga  leaders  with  him 35 

Another  Scotch-Irish  Saxon  settlement 35 

The  trials  of  the  settlers 36 

Organization  at  Nashborongh,  May  1 ,  1780 36 

The  State  founded  on  the  consent  of  the  governed 36 

The  Compact  recognized  the  sovereignty  of  North  Caro- 
lina..., 37 


Viii  TABLE   OF   CONTENTS. 

PAGE 

Similarity  to  the  Watauga  Articles 37 

Putnam's  summary  of  the  Compact 37-38 

The  quality  of  the  instrument 38 

Attention  given  to  land  matters 39 

The  Arbitrators,  twelve  in  number,  chosen  by  the  people.    39 

There  was  no  Sub-commission  as  at  Watauga 39 

The  people  could  remove  Arbitrators 40 

How  the  law  was  administered 40-41 

Richard  Henderson  signs  as  an  independent  contractor. . .     41 

Likeness  and  unlikeness  to  Watauga  institutions 43 

Universal  suffrage  and  religious  liberty 44 

The  Compact  thoroughly  Anglican 44 

Still  another  Republic,  "  South  of  Holston  " 45 

Extract  from  its  Constitution 45 

Likeness  to  Watauga 45-46 

The  Scotch-Irish  Teutons 46 

Cumberland  identical  in  quality  with  Watauga 47 

The  names  of  the  Arbitrators 47 

The  end  of  Cumberland. . .  47 


CHAPTER  III. 

FRANKLIN. 

1784-1788. 

Franklin  less  important  historically  than  Watauga  and 

Cumberland 48 

The  North  Carolina  Cession  Act  of  1784 48-49 

Popular  indignation  in  Franklin 49 

Character  of  the  North  Carolina  government 50 


TABLE   OF   CONTENTS.  IX 

PAGE 

Strained  relations  between  the  Western  Counties  and  the 

State 50-51 

The  Western  district  not  fully  organized  by  North  Caro- 
lina, note 50-51 

The  reasons  actuating  the  Franklin  people 52 

The  Cession  Act  repealed,  November,  1784 ; 52 

It  was  then  probably  unwise  to  persist  in  the  movement. .  53 

Sevier  advised  against  it  after  the  repeal 53 

The  three  Franklin  Conventions 54 

The  Rev.  Mr.  Houston  prepares  a  Constitution 55 

The  State  called  Frankland  in  this  Constitution 55 

The  name  Franklin  adopted 55 

Historic  interest  of  the  Houston  Constitution 55 

The  population  of  the  Western  Counties  was  about  25,000.  56 

Experience  triumphed  over  theory  in  the  Convention 57 

The  Houston  Constitution  considered 57-64 

Its  strict  moral  requirements 58 

One  Legislative  body,  the  six  "  Counsellors,"  the  Governor.59-60 

A  clause  against  religious  establishments 60 

Imprisonment  for  debt ;  education  ;  freedom  of  the  press. .  61 

Universal  suffrage ;  the  Council  of  Safety 62 

This  Constitution  as  indicating  social  and  intellectual  con- 
ditions    63 

The  Scotch-Irish  influence  manifest 64 

The  North  Carolina  Constitution  adopted  by  small  ma- 
jority    64 

The  Franklin  Legislature  met  before  adoption  of  the  Con- 
stitution    65 

The  first  Legislative  Act  west  of  the  Alleghanies  to  encour- 
age learning 65 


X  TABLE   OF   CONTENTS. 

PAGE 

Martin  Academy ...     65 

The  financial  system  of  Franklin 65-66 

The  Franklin  movement  generally  supported  at  first 66-67 

John  Tipton's  defection 67 

The  decadence  of  Franklin 67-68 

Its  later  history  wanting  in  dignity 68 

The  Separatist  movement  69-72 

Robertson's  attitude..  72 


CHAPTER  IV. 

THE   CONSTITUTION    OF    1796. 

1796-1834. 

The  Township  and  the  Shire  discussed 73-76 

The  Township  adopted  in  New  England,  the  County  in 

the  South 75 

The  Court  of   Quarter  Sessions,  the  Tennessee  County 

Court 76 

Local  Government  in  North  Carolina  began  with  Locke's 

Constitutions 76 

Judiciary  of  the  Province  of  North  Carolina 77-78 

It  was  retained  substantially  by  the  States  of  North  Caro- 
lina and  Tennessee 78 

The  Legislature  of  the  Province 78 

The  English  Church  established  in  North  Carolina 78 

The  Common  Law  was  made  the  law  of  North  Carolina.. .     79 

The  Common  Law  is  still  in  force  in  Tennessee 79,  note 

The  Township  the  best  form  of  local  government 80 

Constitution  of  the  State  of  North  Carolina  considered.  .81-82 


TABLE   OF   CONTENTS.  XI 

PAGE 

The  second  Cession  and  creation  of  the  Territory 82 

The  organization  of  the   Territory  South  of  the  River 

Ohio 82-83 

William  Blount,  his  character 83-84 

The  Census  of  1795,  and  population  of  the  Territory 84 

East  Tennessee  favored  and  Middle  Tennessee  opposed 

the  State 85 

Meeting  and  organization  of  the  Convention 85 

The  Committee  to  draft  the  Constitution.    Chas.  McClung, 

draftsman 86 

General  character  of  the  people  at  this  time 87 

There  was  very  little  wealth .     88 

The  Constitution  of  North  Carolina  modified  and  adopted.     89 

The  conservatism  of  American  state-makers 90 

The  Legislature  of  Tennessee,  its  powers  excessive, 

90-91-103-104 

Property  qualifications 91 

Salaries 91 

The  revenue  clauses  were  unique  and  artificial 92 

The  Governor,  term  and  qualifications 92-93 

Free  negroes  could  vote 93 

The  Judiciary,  no  Constitutional  Supreme  Court 93-94-99 

Judges,  Clerks,  and  Attorneys 94 

The  militia 94-95 

Religious  liberty 95 

The  North  Carolina  and  Franklin  Constitutions  on  this 

point 96 

Imprisonment  for  debt  authorized 97 

The  method  of  choosing  officers  criticised 98 

Jefferson's  opinion  of  this  Constitution 100 


Xll  TABLE   OF   CONTENTS. 

PAGE 

Phelan's  criticism  of  it 100 

The  land  tax 101-102 

The  sources  of  State  revenue 103 

The  members  of  the  Convention  had  no  improper  motives.  105 
Defects  of  the  Constitution  caused  by  the  conservatism 

and  inexperience  of  its  makers 107 

This  Constitution  was  not  submitted  to  the  people 107 


CHAPTER  V. 

THE   CONSTITUTION   OF   1834. 
1834-1870. 

Time  and  place  of  meeting 109 

The  powers  of  government  properly  distributed 109 

Qualifications  for  suffrage  and  for  office 110 

The  new  method  of  taxation  was  an  improvement 110 

This  Constitution  proves  the  progress  of  State  and  peo- 
ple   110-112 

Population  and  general  conditions  in  Tenn.  in  1834 113 

The  Governor 113 

Free  negroes  deprived  of  suffrage 113,  note 

A  Constitutional  Supreme  Court  created 114 

The  area  of  Counties ;  the  election  of  minor  officers. .  .115-116 

The  anti-duelling  laws 116-117 

The  power  to  grant  divorces  transferred  from  Legislature 

to  the  Courts 118 

Tennessee  divorce  statutes  wrong  and  too  liberally  con- 
strued .  .119 


TABLE   OF   CONTENTS.  Xlll 

PAGE 

The  Legislature  forbidden  to  authorize  lotteries 1 19 

Special  laws  forbidden,  this  power  abused  under  Con- 
stitution of  1796 120 

The  policy  of  public  improvements 121-122 

Willie  Blount's  resolution 122 

The  amount  of  the  State  debt 123,  note 

The  public  school  system 124 

Important  amendments  in  1853  and  1866 125 

Life  tenure  of  office  produced  bad  results 126 

Many  Judges  impeached 126 

Sketch  of  the  Supreme  Court 127-128 

Sketch  of  the  Chancery  Court 128-129 

There  was  much  confusion  of  jurisdiction 130-131 

Woodrow  Wilson  on  the  new  American  States 131 

Tennessee  had  a  large  influence  in  developing  the  new 

order 133 

The  growth  of  democratic  sentiment  between  1830  and 

1850 133-134 

The  subject  of  Emancipation  in  the  Convention  of  1834. .  134 
The  sentiment  of  the  Convention  unfriendly  to  slavery. 135-138 

The  Counties  petitioning  against  slavery  named 139 

The  plans  of  Emancipation  proposed 140 

The  Convention  finds  the  center  of  gravity  of  the  State.. .  141 

The  Constitution  of  1834  was  made  by  the  people 143 

It  represented  faithfully,  conditions  then  existing  in  the 

State 143 

The  more  prominent  members  of  the  Convention 144 

The  Convention  disfranchises  free  negroes 144 


XIV  TABLE   OF   CONTENTS,    x 

CHAPTER  VI. 

THE    CONSTITUTION    OF    1870. 
1870-1895. 

PAGE 

This  Constitution  not  representative  of  existing  conditions.  145 

The  new  order  of  affairs  not  fairly  established  in  1870 146 

The  old  Constitution  had  already  been  amended  on  the  sub- 
ject of  slavery 146 

Why  as  few  changes  as  possible  were  made 146 

The  Convention  was  a  political  expedient 147 

It  was  the  most  intellectual  body  ever  elected  in  Tennes- 
see   147 

The  leading  members 147-8-9 

Judge  Nicholson  outlines  the  policy 150 

The  gravest  difficulty  was  in  adjusting  the  suffrage 151 

The  extremest  Southern  men  favored  negro  suffrage 152 

The  more  important  changes  indicated 152-3-4-5 

The  changes  in  the  main,  unimportant 155 

The  Militia  regulation  unwise 156 

The  Constitution  of  1870  has  never  been  amended 157 

The  Convention  recognized  its  inability  to  meet  require- 
ments of  a  new  order  of  affairs 157 

The  present  indifference  of  the  people  of  Tennessee 157 

There  is  urgent  need  now  for  a  new  Constitution 158 

The  defects  of  the  Constitution  indicated 159-161 

The  reforms  most  needed  are  in  taxation  and  in  local  gov- 
ernment   161 

The  unity  of  the  institutional  growth  of  Tennessee 162 

The  demands  of  present  conditions  for  a  new  Constitution 
can  not  long  be  resisted 163 


STUDIES 


IN   THE 


Constitutional  History  of  Tennessee. 


CHAPTER  I. 

THE  WATAUGA  ASSOCIATION. 
1772-1777. 

To  comprehend  the  spirit  and  the  true  quality 
of  institutions,  we  must  know  the  people  who  es- 
tablished them.  A  subject  so  interesting  and  im- 
portant as  the  institutional  history  of  the  United 
States  has  not  failed  to  attract  many  earnest  stu- 
dents and  competent  writers. 

Conspicuous  among  these  is  Hannis  Taylor,  of 
Alabama,  who  has  made  the  study  and  the  exposi- 
tion of  English  and  American  political  history  his 
life  work,  and  whose  admirable  book  is  intended 
to  demonstrate  the  fact  that  the  American  Constitu- 
tion is  only  a  phase  in  the  development  of  the  En- 
glish Constitution. 

That  both  our  political  and  our  social  institutions 
are  derived  almost  exclusively  from  England  is  an 

(l) 


2  CONSTITUTIONAL   HISTORY. 

opinion  which  until  recently  was  universally  ac- 
cepted. It  is  asserted,  in  effect,  by  such  writers  as 
Sir  Henry  Maine,  Edward  A.  Freeman  and  James 
Bryce,  in  England,  and  Bancroft,  Fiske,  Taylor 
and  Woodrow  Wilson,  in  America.  Mr.  Fiske 
declares  emphatically  that :  except  the  development 
of  the  written  constitution,  every  bit  of  civil  gov- 
ernment in  America  came  directly  from  England.* 

In  1892,  however,  appeared  Douglas  Campbell's 
valuable  book  on  the  Puritans  in  Holland,  England, 
and  America. 

Mr.  Campbell  had  been  an  enthusiastic  student 
of  the  colonial  history  of  New  York,  and  had  con- 
vinced himself  that  very  much  of  what  is  best  in 
our  institutions  had  come  to  us  from  the  Dutch, 
through  English  contact  with  Holland  before  the 
colonizing  period,  through  the  temporary  residence 
of  the  Puritans  in  Holland,  and  through  the  Dutch 
colonists  of  America.  It  is  as  certain  that  Camp- 
bell overestimated  the  Dutch  influence  as  that 
other  American  historians  have  underestimated  or 
ignored  it.  It  is  not  to  be  disputed  that  upon  the 
social  life  and  in  less  degree  upon  the  political  in- 
stitutions of  the  Middle  and  Eastern  Colonies,  the 


*  Civil  Government,  p.  202. 


THE   WATAUGA   ASSOCIATION.  3 

Dutch  influence  was  very  great  and  very  salutary. 
It  will  not  be  difficult  to  discover  throughout  our 
country,  evidences  of  its  indirect  operation  as  one 
of  the  great  and  general  civilizing  forces,  but  in 
these  colonies  it  acted  directly  and  left  its  impress 
in  substantive  institutions.  It  was  not  only  Dutch 
influence  upon  English  civilization,  but  also  the  in- 
fluence of  Dutchmen  living  and  acting  in  America. 
But  even  Mr.  Campbell  admits  that  this  direct  in- 
fluence did  not  extend  below  the  Middle  Colonies, 
and  therefore  did  not  affect  the  Virginia  group. 
He  reconciles  his  argument  with  this  fact  by  deny- 
ing to  the  South  any  material  part  in  forming  our 
institutions. 

In  New  England,  political  institutions  were  es- 
sentially old  English  with  modifications  resulting 
from  the  effort  to  realize  an  impossible  theocratic 
ideal.  It  was  in  the  Middle  Colonies  that  the 
Dutch  influence  was  strongest.  The  Hollanders 
colonized  New  York  and  overcame  the  Swedes, 
who  had  settled  along  the  Delaware  and  Jersey 
coasts. 

Virginia,  however,  was  even  more  English  than 
New  England.  The  people  were  English  and  the 
institutions  were  modern  English  in  form  as 
well  as  in  substance.  Virginia  was  consistently 


4  CONSTITUTIONAL   HISTORY. 

loyal  to  the  Crown  and  to  the  Church  of  England, 
and  her  colonial  society  in  some  respects  exhibited 
distinctly  aristocratic  qualities. 

In  all  the  colonies  the  right  of  local  self-govern- 
ment was  exercised  in  some  form.  The  Massachu- 
setts system  differed  widely  from  the  Virginia  sys- 
tem and  the  Middle  Colonies  adopted  some  of  the 
peculiarities  of  each  of  these. 

It  has  been  said,  happily,  that  the  social  forces  of 
New  England  were  centripetal,  and  those  of  Vir- 
ginia centrifugal. 

The  New  Englanders,  seeking  first  of  all,  not  re- 
ligious freedom,  but  freedom  for  their  own  religion 
and  none  other,  settled  in  clusters  around  their 
churches  and  school-houses,  and  thus  established 
the  township  as  the  unit  of  government.  The 
sterility  of  the  soil  and  the  consequent  necessity 
for  relying  on  trade  for  subsistence  contributed 
largely  to  the  permanency  of  the  system.  The 
Virginians,  on  the  other  hand,  quickly  became 
scattered.  They  found  a  fruitful  soil  and  a  genial 
and  hospitable  climate.  They  were  not,  as  a  rule, 
seeking  religious  freedom,  but  the  betterment  of 
their  fortunes,  and  they  lacked  the  cohesive  and 
centralizing  force  of  a  strong  and  fiercely  intolerant 
sectarianism.  The  introduction  of  tobacco  and  of 


THE   WATAUGA   ASSOCIATION.  5 

slavery  at  an  early  period  in  their  history  con- 
firmed the  tendency  to  diffusion.  Nothing  yielded 
such  liberal  returns  as  tobacco,  and  large  planta- 
tions were  needed  for  it.  Thus  the  Virginia 
planters  dispersed  themselves  through  the  broad 
and  fertile  lowlands,  employing  their  increasing 
troops  of  slaves  in  the  cultivation  of  this  profitable 
plant.  The  New  Englanders  lived  close  together, 
under  the  eaves  of  their  churches;  the  Virginians 
far  apart,  each  isolated  in  the  midst  of  his  spreading 
plantation.  Conditions  in  Virginia  were  wholly  in- 
compatible with  the  existence  of  the  township  sys- 
tem, and  the  county  became  of  necessity  the  gov- 
ernmental unit. 

The  Virginians  adopted  the  plan  then  existing  in 
England,  while  New  England  had  in  modified  form 
an  older  Teutonic  system. 

The  people  of  Virginia  were  overwhelmingly 
English  in  blood.  Fiske  estimates  that  in  the  mid- 
dle of  the  eighteenth  century  about  ninety-eight 
per  cent  of  the  white  population  was  English.*  All 
the  Southern  colonies  have  aptly  been  called  the 
Virginia  group,  and  all  the  Southern  States  are  in 
the  same  sense  a  Virginia  group.  The  Virginia 

*  Harper's  Magazine,  vol.  65,  p.  900. 


6  CONSTITUTIONAL   HISTORY. 

system  of  local  government,  as  distinguished  from 
the  ~New  England  system,  prevails  in  all  of  them. 

The  territory  of  Tennessee  belonged  to  North 
Carolina,  which  was  more  thoroughly  Virginian 
than  either  South  Carolina  or  Georgia.  It  was  an 
agricultural  colony,  and  its  political  organization, 
after  the  demise  of  the  Locke  and  Shaftesbury 
Constitutions  was,  in  essentials,  identical  with  that 
of  Virginia.  The  first  settlers  were  from  Virginia 
and  the  dominant  element  of  population  was  En- 
glish. So  far  as  political  and  social  institutions 
were  concerned,  every  thing  was  of  English  origin. 
There  were  some  Huguenots,  Highlanders  and 
Germans,  and  a  considerable  number  of  Scotch- 
Irish.  The  last  were  to  be  found  mainly  in  the  up 
country  region,  along  the  mountain  slopes.  They 
alone  were  sufficiently  numerous  and  self-assertive 
to  have  competed  in  any  respect  with  the  purely 
English  element,  but  they  were  Teutons  in  blood, 
and  were  politically  no  less  English  than  the  En- 
glish themselves.  Except  that  they  were  more 
pronounced  and  aggressive  in  their  democracy, 
they  differed  not  at  all,  in  political  beliefs,  from 
the  English  settlers.  It  must  always  be  borne  in 
mind  that  while  the  Saxon  blood  of  the  lowland 
Scotchman  has  been  copiously  diluted,  and  while 


THE  WATAUGA   ASSOCIATION.  7 

the  Britons  of  Wales  and  the  Celts  of  Ireland  are 
alien  in  blood  to  the  English,  they  all  belong  to  the 
English  political  family  and  represent  the  same 
beliefs  and  tendencies.*  The  fundamental  tenets 
of  Anglo-Saxon  freedom  are  personal  liberty  and 
representative  government,  and  in  advocacy  of 
these  the  Scotch-Irishmen  have  been  as  earnest 
and  as  steadfast  as  the  full-blooded  Englishmen 
of  Massachusetts  or  of  Virginia. 

The  Scotch-Irish,  who  play  so  important  a  part 
in  the  early  history  of  Tennessee,  entered  America 
mainly  at  two  points.  Most  of  them  came  to 
Philadelphia,  but  many  selected  Charleston.  Be- 
ing late  comers,  they  found  the  more  fertile  and 
accessible  coast  lands  already  occupied,  and  there- 
fore were  forced  to  the  border,  which  then  lay 
along  the  mountains.  Persistent  of  purpose  and 

*  Douglas  Campbell  declares  that  the  Scotch-Irish  were  un- 
English  and  hated  English  institutions,  both  civil  and  ecclesi- 
astical. This  is  a  gross  misconception  so  far  as  political  beliefs 
are  concerned.  It  is  in  the  Scotch-Irish  States,  Tennessee 
and  Kentucky,  that  modern  English  forms  and  methods 
were  most  closely  copied  and  have  been  longest  retained. 
If  by  reason  of  their  democracy  the  Scotch-Irish  were  un- 
English,  then  John  Bright  was  un-English,  and  so  is  the 
mass  of  the  English  Liberal  party  of  the  present  day.  Their 
principles  were  not  un-English.  They  were  English  principles 
carried  to  their  logical  conclusion. 


8  CONSTITUTIONAL    HISTORY. 

of  dauntless  courage  they  boldly  pushed  their  way 
into  new  lands.  From  "Western  Pennsylvania  they 
forged  steadily  southward  along  either  slope  of  the 
Blue  Ridge.  In  1768  they  had  established  them- 
selves along  the  Holston  as  far  south  almost  as  the 
present  Tennessee  line.  Upon  the  south  of  the 
Alleghanies  the  northern  stream  of  migration  had 
flowed  on  until  it  had  met  a  counter  current  from 
the  South.  The  Southern  Presbyterians  had  come 
up  from  Charleston,  settling  the  piedmont  lands, 
and  had  met  their  kinsmen  from  Pennsylvania. 
Thus  the  Scotch-Irish  had  possessed  themselves 
of  most  of  the  hill  country  south  of  the  Appa- 
lachians, and  in  Western  Virginia  had  gained  foot- 
hold in  the  Holston  Valley.  The  movement  could 
not  be  arrested,  but  of  necessity  it  was  diverted 
westward. 

The  mountains  could  no  longer  bar  the  pioneers 
from  the  rich  lands  of  the  Mississippi  Valley. 
They  were  already  upon  the  head  waters  of  the 
Tennessee,  and  their  scouts  and  hunters  had  pen- 
etrated the  forests  of  Kentucky  and  of  the  lower 
Cumberland. 

The  place  of  entrance  was  selected  wisely  by 
Boone  and  the  first  Watauga  settlers.  Upper  East 
Tennessee  was  not  an  inhabited  region,  but  an 
unoccupied  hunting  ground  and  this  was  perhaps 


THE   WATAUGA   ASSOCIATION.  9 

equally  true  of  Eastern  Kentucky.  Here  was  un- 
doubtedly the  point  of  "least  resistance"  on  the 
whole  frontier.  The  pressure  behind  the  Holston 
settlers  pushed  them  as  far  south  as  the  Watauga 
country  in  1769,  and  there  these  Virginian  Scotch- 
Irishmen  found  a  few  families  of  Carolinian  Scotch- 
Irishmen  who  had  preceded  them  a  little  while.* 

The  meeting  of  the  tides  of  migration  south  of 
the  mountains  continued  to  cause  a  considerable 
though  intermittent  flow  westward.  The  events 
connected  with  the  Tryon  rebellion  in  North  Caro- 
lina brought  many  recruits  to  Watauga,  and  aided 
to  confirm  the  Scotch-Irish  ascendancy.  Most  of 
the  settlers  were  from  Virginia,  and  at  first  they 
believed  that  they  were  in  the  domain  of  that  col- 
ony, and  protected  by  its  treaties  with  the  Indians. 
In  1771,  however,  the  line  between  Virginia  and 
North  Carolina  was  run,  and  the  Watauga  people 
found  themselves  in  North  Carolina,  but  separated 
from  the  settled  regions  of  the  parent  colony  by 
almost  impassable  ranges  of  mountains.  Even  if 
communication  had  been  easier  the  settlers  were 
not  regarded  with  favor  by  North  Carolina,  and 
moreover  the  affairs  of  that  colony  were  in  a  con- 

*  Hay  wood,  History  of  Tennessee,  edition  1891,  p.  50. 


10  CONSTITUTIONAL   HISTORY. 

dition  so  disordered  and  its  administration  so  ham- 
pered that  neither  protection  nor  aid  could  he  ex- 
pected on  the  Watauga.  It  is  literally  true  that 
Watauga  was  without  government.  The  Indians 
were  constantly  threatening,  and  many  lawless 
characters,  needy  adventurers,  and  fugitives  from 
justice  had  come  with  the  first  wave  of  immigra- 
tion. There  was  urgent  need  for  law  and  for  its 
prompt  and  vigorous  enforcement. 

When,  some  years  later,  the  French  settlers  in 
Illinois  found  themselves  thrown  upon  their  own 
resources,  they  sent  a  petition  to  Congress  for  a 
Governor  and  for  soldiers.  As  Roosevelt  very 
truly  says,  they  wished  for  a  master.*  But  in  the 
Saxon  was  the  race  instinct  of  self-government, 
along  with  a  hold  self-reliance.  Watauga  did  not 
fretfully  invoke  the  aid  of  North  Carolina,  and 
while  awaiting  a  response  tamely  submit  to  the 
evils  of  which  it  complained.  There  was  but  a 
handful  of  settlers,  but  being  of  a  free  race,  state 
making,  and  apt  to  organize,  they  speedily  con- 
structed a  government  of  their  own.  This  extem- 
porary State  was  rough-built,  but  it  answered  the 
purposes  for  which  it  was  intended.  One  is  re- 

*  Winning  of  the  West,  Vol.  2,  p.  184. 


THE    WATAUGA   ASSOCIATION.  11 

minded  by  it,  vividly,  of  the  ancient  German  fed- 
erations. The  line  of  descent  is  easily  traced.  The 
Watauga  Association  was  a  thoroughly  Teutonic 
institution ;  a  new  England  on  a  small  scale,  but 
shorn  of  aristocracy,  and  of  every  class  distinction. 
In  this  backwoods  community,  Anglo-Saxon  prin- 
ciples had  perhaps  for  the  first  time  full  scope. 
What  English-speaking  community,  before  "Wa- 
tauga, had  universal  suffrage  and  absolute  religious 
freedom  ? 

Watauga  may  have  had  little  influence  on  the 
course  of  history  beyond  the  borders  of  Tennessee, 
but  it  has  a  great  and  general  interest  and  impor- 
tance as  the  first  concrete  manifestation  of  the  dis- 
tinctively American  spirit  of  independence. 

Speaking  of  Watauga,  Bancroft  says:  "For 
government,  its  members  in  1772  came  together  as 
brothers  in  convention,  and  founded  a  republic  by 
a  written  association  ;  appointed  their  own  magis- 
trates, Robertson  among  the  first ;  framed  laws  for 
their  present  occasions;  and  set  to  the  people  of 
America  the  example  of  erecting  themselves  into  a 
State,  independent  of  the  authority  of  the  British 
king."  * 

*  Bancroft,  Vol.  3,  p.  403. 


12  CONSTITUTIONAL   HISTORY. 

It  is  both  interesting  and  important  to  notice  the 
descent  of  the  three  Watauga  leaders.  John  Car- 
ter, the  official  head  of  the  Association,  was  of  an 
old  and  honorable  Virginia  family  of  English  ori- 
gin. His  precedence  is  to  be  attributed  to  high 
social  standing  and  superior  abilities.  James  Rob- 
ertson was  a  Scotch-Irishman  who  had  come  from 
Virginia  through  North  Carolina,  and  John  Sevier 
was  an  Englishman.  More  accurately  speaking, 
they  were  all  Americans,  distinctively  so  by  birth, 
and  not  less  in  sentiment.  It  is  the  custom  to  call 
Sevier  a  Huguenot,  because  his  grandfather  was  a 
Huguenot,  but  in  language,  in  education,  and 
above  all  in  political  principles,  he  was  thoroughly 
Saxon. 

Another  fact  of  the  first  importance  is  that  the 
dominant  element  in  the  community  was  the  Scotch 
Presbyterian.  The  Calvinistic  theology  developed 
democracy,  not  only  in  Great  Britain,  but  through- 
out Western  Europe.  The  strongest  democrats 
were  the  English  Puritans  and  the  Scotch  Puritans. 
When  the  Scotch  Puritans  of  Watauga  found  them- 
selves without  a  government,  they  established  one 
on  the  English  plan,  improved  so  that  all  men 
should  be  equal.  In  the  Watauga  compact  were 
the  germs  of  nearly  every  thing  that  is  in  our 


THE   WATAUGA  ASSOCIATION.  13 

national  constitution,  and  both  these  are  phases  of 
a  political  evolution  which  we  know  has  been  going 
on  steadily  since  the  Roman  historians  discovered 
the  "  huge,  white-bodied,  cool-blooded,  blue-eyed, 
flaxen-haired  "  Saxons  in  the  foggy  marshes  of  the 
North  Sea. 

I  do  not  wish  unduly  to  exalt  nor  to  idealize  the 
Watauga  men.  They  were,  with  few  exceptions, 
plain  people,  and  their  sturdy  virtues  were  mingled 
\vith  many  faults.  John  Sevier,  who  became  most 
noted  among  their  leaders,  was  not  without  edu- 
cation, though  neither  learned  nor  studious.  Rob- 
ertson, whose  natural  abilities  were  of  a  high  order, 
was  painfully  illiterate,  and  was  laboriously  learn- 
ing to  write  his  own  name.  This  last  accomplish- 
ment appears  to  have  been  possessed  by  most  of 
the  settlers.  The  antecedents  of  the  Carters  sup- 
port the  belief  that  they  were  people  of  education 
and  of  superior  social  standing. 

We  are  likely  to  classify  immigrants  as  thriftless 
and  unworthy.  The  Scotch-Irish,  the  English  and 
Dutch  Puritans,  the  Huguenots,  the  Swedish  and 
German  Lutherans,  and  the  great  bulk  of  the  Vir- 
ginia Englishmen  were  neither  thriftless  nor  un- 
worthy. The  Scotch-Irish,  who  dominated  the 
"Watauga  community,  came  to  this  country,  not 


14  CONSTITUTIONAL   HISTORY. 

more  to  better  their  temporal  fortunes  than  to  find 
freedom  of  religion.  But  not  even  in  earliest  times 
was  America  exempt  from  the  evil  of  criminal  and 
pauper  immigration,  which  has  now  assumed  such 
vast  and  menacing  proportions. 

The  Watauga  settlement  was  not  exceptional  in 
this  respect,  but  had  its  quota  of  ruffians  and  crim- 
inals, to  whom  it  did  not  hesitate  to  administer  con- 
dign punishment.  It  is  certain  that,  in  the  main, 
the  Watauga  people  were  honest  and  worthy  pro- 
fessors of  the  Presbyterian  faith.  They  were  rough 
in  act  and  in  speech ;  their  virtues  were  homely  and 
substantial ;  they  lived  hard  lives  in  mud-chinked, 
puncheon-floored  cabins ;  ate  coarse  food,  and 
dressed  in  homespun  and  in  the  skins  of  wild 
beasts. 

Their  morals  were  good,  and  their  political  prin- 
ciples were  of  the  soundest  Anglo-Saxon  stock. 
Politically,  they  were  Englishmen  living  under  new 
conditions  which  were  favorable  to  the  develop- 
ment of  that  spirit  of  personal  independence  which 
their  theology  inculcated.  Their  principles  were 
the  very  essence  of  the  English  Constitution  freed 
from  the  trammels  of  tradition  and  precedent. 
They  were  thorough -going  democrats.  Their  indi- 
vidualism was  defiant,  aggressive,  fierce.  Their 


THE   WATAUGA   ASSOCIATION.  15 

impress  upon  the  intellectual  and  political  life  of 
the  State  is  indelible.  The  settlers  who  came  after 
them  were  mainly  of  their  own  kind. 

The  political  institutions  of  Tennessee  are  there- 
fore the  purest  Anglo-Saxon,  with  the  highest  pos- 
sible development  of  individualism.  This  intense 
democracy  is  a  continuing  characteristic.  Even 
the  eminently  aristocratic  institution  of  slavery 
could  not  overcome  it.  In  no  part  of  the  earth  is 
belief  in  the  equality  of  men  stronger  or  more  per- 
sistently asserted  than  in  East  Tennessee.  It  must 
be  admitted  that  in  some  instances  the  development 
of  this  virtue  has  been  excessive. 

Such  were  the  founders  of  Tennessee  as  we  see 
them  in  history  and  in  the  characteristics  of  their 
descendants. 

The  rule  of  the  first  settlers  has  been  perpet- 
uated. Theodore  Roosevelt,  to  whom  we  are  much 
indebted,  remarks  frequently  and  justly  upon  the 
fact  that  while  in  Kentucky  and  the  other  "Western 
States  the  control  of  affairs  quickly  passed  from 
the  first  settlers  to  the  more  cultured  class  which 
came  later,  it  was  not  so  in  Tennessee.  Here  the 
descendants  of  the  pioneers,  or  of  the  same  class 
to  which  they  belonged,  are  still  dominant.  No 
Virginia  family,  for  instance,  ever  held  such  place 


16  CONSTITUTIONAL    HISTORY. 

and  power  in  Tennessee  as  the  Preston-Breckin- 
ridge  family  has  held  in  Kentucky.  Nearly  all  the 
great  names  in  the  history  of  Tennessee  are  pioneer 
names,  Scotch-Irish  names.  Jackson  and  Polk  are 
conspicuous  examples.  It  is  probably  true  that 
Tennessee  has  always  been  the  most  democratic 
community  in  America. 

As  to  the  Watauga  Constitution  or  Compact, 
our  knowledge  unfortunately  is  very  limited.  The 
instrument  itself  has  perished.  I  shall  discuss 
hereafter  the  connection  between  it  and  the  Cumber- 
land Compact.  As  James  Robertson  and  at  least 
three  of  his  associates  were  leaders  in  the  two  com- 
munities, and  as  the  conditions  under  which  they 
were  organized  were  very  similar,  it  is  almost  cer- 
tain that  the  Cumberland  Compact,  which  has  been 
preserved  in  part,  was  in  large  measure  a  reproduc- 
tion of  the  Watauga  Constitution.  Haywood  is 
very  brief  and  unsatisfactory  on  the  subject  of  the 
Watauga  Agreement.  He  says  that  the  settlers 
"  formed  a  written  association  and  articles  for  their 
conduct  and  that  they  appointed  five  commissioners? 
a  majority  of  whom  \£as  to  decide  all  matters  in 
controversy  and  to  govern  and  direct  for  the  com- 
mon good."*  This  laconic  description  is  some- 

*  Haywood,  p.  54. 


THE   WATAUGA   ASSOCIATION.  17 

what  enlarged  by  Ramsey,  who  says :  "  The 
Watauga  settlers,  in  convention  assembled,  elected 
as  commissioners  thirteen  citizens.  They  were 
John  Carter,  Charles  Robertson,  Zach  Isbell,  John 
Sevier,  James  Smith,  James  Robertson,  Jacob 
Brown,  Wm.  Bean,  John  Jones,  George  Russell, 
Jacob  Womack,  Robert  Lucas,  William  Tatham. 

Of  these,  John  Carter,  Charles  Robertson,  James 
Robertson,  Zach  Isbell  and  John  Sevier  were  se- 
lected as  the  court,  of  which  W.  Tatham  was  the 
clerk.* 

This  court,  or  board  of  five  commissioners,  ap- 
pears to  have  exercised  all  judicial  and  executive 
functions. 

Roosevelt  discusses  the  subject  more  at  length, 
and  in  much  the  same  tone  as  Bancroft.  He 
recognizes  the  quality  of  the  Watauga  Association, 
and  its  importance  as  the  first  free  and  independent 
community  established  by  men  of  American  birth, 
on  this  continent.  He  comments  also  upon  the 
likeness  of  the  Association  and  its  procedure  to 
the  ancient  German  polity,  calling  the  general  con- 
vention, "  a  kind  of  folk-thing,  kin  to  the  New 
England  town  meeting,"  and  the  representative 
assembly  a  small  parliament  or  "  witanagemot."  f 

*  Kamsey,  p.  107.      t  Winning  of  the  West,  Vol.  1,  p.  184. 


18  CONSTITUTIONAL   HISTORY. 

The  settlements  originally  composing  the  Asso- 
ciation were  Watauga  and  Carter's  Valley,  the  last 
being  about  sixteen  miles  east  of  the  present  town 
of  Rogersville.  The  Nolichucky  or  Brown  settle- 
ment was  admitted  afterward.  The  principle  of 
representation  appears  to  have  been  fully  and  fairly 
employed,  but  as  to  the  exact  method,  we  have  no 
information.  It  may  be  accepted  as  certain,  how- 
ever, that  the  entire  procedure  was  modeled  upon 
the  Virginia  system,  and  probably  each  little  station 
or  settlement  was  allowed  representation  in  pro- 
portion to  the  number  of  its  inhabitants. 

For  about  six  years  Watauga  existed  as  an  inde- 
pendent community,  exercising  every  prerogative 
of  statehood,  and  all  its  proceedings  seem  to  have 
been  moderate  and  prudent,  but  firm  and  in  the 
main  efficient. 

So  far  as  we  can  judge  from  the  meager  informa- 
tion that  survives,  the  citizens  were  not  dissatisfied, 
although  the  petition  for  annexation  to  North  Caro- 
lina, which  was  presented  in  1776,  expressed  regret 
that  some  who  deserved  punishment  had  escaped. 

The  people  were  fairly  well  protected  in  life  and 
property,  and  especially  effective  measures  seem  to 
have  been  adopted  for  the  suppression  of  the 
gravest  of  frontier  crimes — horse-stealing.  I  can 


THE   WATAUGA   ASSOCIATION.  19 

find  no  traces  of  any  insurrectionary  feeling  such 
as  was  exhibited  by  the  supporters  of  the  State  of 
Franklin  in  later  years.  The  people  and  their 
leaders  seem  to  have  had  in  view  nothing  beyond 
a  government  for  their  own  protection. 

In  their  petition  of  1776,  they  use  the  following 
language  in  explanation  of  their  purposes  :  "  Find- 
ing ourselves  on  the  frontiers,  and  being  apprehen- 
sive that  for  the  want  of  a  proper  Legislature  we 
might  become  a  shelter  for  such  as  endeavored  to 
defraud  their  creditors ;  considering,  also,  the 
necessity  of  recording  Deeds  and  Wills,  and  doing 
other  public  business,  we,  by  consent  of  the  peo- 
ple, formed  a  court  for  the  purposes  above  men- 
tioned." * 

When  non-residents  were  dealt  with,  bonds  were 
required  from  them  in  order  that  personal  proceed- 
ings might  not  be  necessary.  Deeds  and  wills  were 
recorded,  marriage  licenses  were  issued,  and  all  es- 
sential functions  of  government  were  carried  on  in 
a  due  and  orderly  and  dignified  manner.  Mr. 
Roosevelt  thinks  that  Ramsey  is  unhappy  in  char- 
acterizing the  government  as  "  paternal  and  patri- 

*  Ramsey,  p.  136. 


20  CONSTITUTIONAL   HISTORY. 

archal,"  and  yet  this  is  true  in  a  sense,  though  it  was 
also  essentially  democratic. 

Some  of  its  legislation,  or  more  accurately,  some 
of  its  administration,  was  decidedly  sumptuary,  and 
it  assumed  liberal,  though  salutary,  powers  for  the 
regulation  of  morals.  At  least  one  instance  is 
known  in  which  it  intervened  in  family  affairs,  re- 
quiring an  errant  husband  to  return  to  his  duties. 
It  adopted  the  laws  of  Virginia  in  preference  to 
those  of  North  Carolina,  and  interpreted  and  ad- 
ministered them,  wisely,  with  more  regard  to  its 
surroundings  and  needs  than  to  technical  methods. 
There  is  no  evidence  of  any  restriction  of  suffrage, 
nor  any  reason  to  doubt  that  all  free  men  over 
twenty-one  years  of  age  were  allowed  to  vote. 
This  was  the  law  in  Cumberland.  In  the  petition 
of  1776,  the  Watauga  people  declared  that  their 
committee  had  been  chosen  "  unanimously  by  con- 
Bent  of  the  people,"  and  again  that  they  had  acted 
with  the  consent  of  "  every  individual."  * 

Nothing  is  said  of  religious  or  other  special  tests 
as  conditions  to  the  exercise  of  any  right,  nor  to  the 
enjoyment  of  any  privilege  or  preferment.  In 
short,  the  Association  seems  to  have  been  a  purely 

*  Ramsey,  p.  136. 


THE   WATAtGA   ASSOCIATION.  21 

representative   democracy,  based    upon    universal 
suffrage. 

It  is  impossible  to  define  the  respective  powers  of 
the  committee  of  thirteen,  and  of  the  court  or  com- 
mission of  five.  It  is  stated  that  the  chairman  of 
the  court  was  also  the  presiding  officer  of  the  larger 
body.  Whether  the  committee  had  any  supervisory 
or  appellate  relations  to  the  court  or  not,  I  am  un- 
able to  say  positively.  The  thirteen  do  not  appear 
to  have  had  any  part  in  the  actual  conduct  of  the 
public  business.  Ramsey  says,  referring  to  the 
court  of  five,  that  it  was  a  tribunal  for  the  settle- 
ment of  "  any  private  controversies,"  and  that  its 
sessions  were  held  at  stated  and  regular  periods.* 
It  seems  at  first  to  have  carried  on  its  business 
without  the  assistance  of  a  clerk,  but  later,  it  is  re- 
corded, four  different  persons  served  it  successively 
in  that  capacity.  It  had  also  a  sheriff  and  an  at- 
torney. No  record  of  its  decisions  nor  account  of 
its  proceedings  has  been  preserved.f  Roosevelt 

*  Ramsey,  p.  133. 

1 1  have  heard  from  the  descendants  of  several  of  the  Wa- 
tauga  leaders  that  the  records  were  purposely  concealed  or  de- 
stroyed for  fear  that  members  of  the  government  might  be 
called  to  account  for  certain  summary  acts  of  administration. 
This  is  not  improbable. 


22  CONSTITUTIONAL   HISTORY. 

says  that  the  court  of  five  members  had  "  entire 
control  of  all  matters  affecting  the  common  weal, 
and  all  affairs  in  controversy  were  settled  by  the 
decision  of  a  majority."  *  Nothing  can  be  said 
definitely  concerning  the  committee  of  thirteen, 
except  that  it  met  in  1772  and  appointed  the  court, 
to  which  it  appears  to  have  intrusted  all  the  func- 
tions of  administration. 

The  military  establishment  of  the  Association  is 
described  in  the  petition  of  1776  in  the  following 
language  :  "  We  thought  it  proper  to  raise  a  com- 
pany on  the  district  service,  as  our  proportion,  to 
act  in  the  common  cause  on  the  seashore.  A  com- 
pany of  fine  riflemen  were  accordingly  enlisted  and 
put  under  Capt.  James  Robertson,  and  were 
actually  embodied,  when  we  received  sundry  let- 
ters and  depositions  (copies  -of  which  we  now  en- 
close you),  you  will  then  readily  judge  that  there  was 
occasion  for  them  in  another  place  where  we  daily 
expected  an  attack.  We  therefore  thought  proper 
to  station  them  on  our  Frontiers  in  defence  of  the 
common  cause,  at  the  expense  and  risque  of  our 
own  private  fortunes,  till  farther  public  orders, 
which  we  flatter  ourselves  will  give  no  offence."  f 

*  Winning  of  the  West,  Vol.  1,  p.  184. 

*  Ramsey,  p.  137. 


THE   WATAUGA  ASSOCIATION.  23 

The  fact  that  such  an  organization  as  the  Wa- 
tauga  Association  existed  for  six  years,  and  that  its 
administration,  so  far  as  we  know,  was  acceptable 
to  the  people,  is  strong  proof  of  the  wisdom  and 
worth  of  the  men  who  established  and  controlled 
it.  Many  of  its  founders  were  unlearned,  but  they 
were  educated  in  free  principles;*  they  were  just 
and  firm,  and  their  native  good  sense  and  probity 
were  equal  to  every  demand  upon  them.  When  in 
1777  North  Carolina  created  Washington  colmty, 
which  comprised  all  the  constituent  communities  of 
the  Association,  there  was  no  disturbance  of  either 
public  or  private  affairs.  The  Watauga  officers  in 
many  instances  were  appointed  to  corresponding 
places  by  the  State,  and  matters  went  on  very 
much  as  before.  The  law  was  administered  with 
the  same  directness,  informality,  and  efficiency, 
and  the  connection  with  North  Carolina  was  little 


*  As  a  rule,  the  Scotch-Irish  were  not  illiterate.  In  review- 
ing iny  work,  I  am  led  to  doubt  whether  I  have  done  the  Wa- 
tauga  people  full  justice  in  this  respect.  The  petition  of  1776 
has  113  signers,  and  all  but  two  appear  to  have  written  their 
names.  For  many  years  the  illiteracy  of  her  people  was  a 
source  of  shame  to  Tennessee,  but  this  illiteracy  was  largely  a 
result  of  unfortunate  conditions  of  a  period  subsequent  to  the 
first  settlements. 


24  CONSTITUTIONAL   HISTORY. 

more  than  nominal.  The  sentiment  of  allegiance 
to  the  State  was  never  strong  west  of  the  moun- 
tains, and  the  ultramontane  settlements  were  never 
favorites  of  the  mother  State.  The  Tennessee 
counties  regretted  and  resented  the  fact  that  they 
were  not  in  Virginia. 

I  have  endeavored  to  show  that  the  first  political 
institutions  established  on  the  soil  of  Tennessee 
were  free  and  were  wholly  democratic ;  that  they 
were  thoroughly  Anglo-Saxon  in  origin  and  qual- 
ity, and  that  they  for  the  first  time  carried  certain 
principles  of  English  freedom  to  their  logical  con- 
clusion, in  that  they  declared  'the  absolute  equality 
of  all  free  men ;  ignored  all  distinctions  of  class, 
and  allowed  the  fullest  freedom  of  conscience,  as 
well  as  of  conduct. 

The  Watauga  Association  has  been  given  no 
little  prominence  in  recent  historical  writings,  and 
very  much  has  been  claimed  for  it.  It  has  been 
called  the  "  first  free  and  independent  government 
in  America."  In  a  certain  sense,  this  is  true.  It 
was  the  first  of  the  series  of  self-dependent  and 
thoroughly  American  commonwealths  established 
on  the  frontier  just  before  the  Revolution.  Our 
Tennessee  historians  are  content  to  say  that  the 
Watauga  Compact  was  the  first  written  constitution 
west  of  the  Alleghanies.  Roosevelt  concurs  in  this, 


THE   WATAUGA  ASSOCIATION.  25 

and  adds  that  "Watauga  was  the  first  free  and  in- 
dependent community  established  on  the  continent 
by  men  of  American  birth. 

We  must  be  moderate  in  our  claims.  Our  Yan- 
kee kinsmen,  from  the  beginning,  were  much  ad- 
dicted to  state-making.  The  Pilgrims  of  the 
Mayflower  employed  the  leisure  time  of  their  voy- 
age in  preparing  a  compact  which  was  almost  a 
constitution,  and  the  early  history  of  New  England 
is  full  of  commonwealths  and  confederations.  On 
the  14th  of  January,  1639,  three  Connecticut  towns 
adopted  an  instrument  which  is  known  as  the 
"  Fundamental  Orders  of  Connecticut."  Of  this, 
Mr.  Fiske  says :  "  It  was  the  first  written  constitu- 
tion known  to  history  that  created  a  government, 
and  it  made  the  beginning  of  American  democ- 
racy." *  It  must  be  remembered,  however,  that 
the  Connecticut  men  were  Englishmen,  while  the 
Watauga  men  were  Americans.  It  is  true  also,  that 
while  the  framers  of  the  Fundamental  Orders  were 
less  illiberal  than  their  Massachusetts  neighbors, 
with  whom  they  could  not  agree,  tbey  were  more 
intolerant  in  religious  matters  than  the  equally 
pious  Scotch-Irishmen  of  the  West.  The  Watauga 


Beginnings  of  New  England,  p.  127. 


26  CONSTITUTIONAL   HISTORY. 

Community  seems  to  have  had  no  restriction  upon 
suffrage,  and  any  good  man  was  eligible  to  office, 
whereas,  Mr.  Fiske,  going  as  far  as  he  can,  says  of 
Connecticut  that  suffrage  was  "almost  universal;"  * 
and  it  was  provided  in  the  compact  that  the  gov- 
ernor should  he  a  member  of  some  "approved 
congregation." 

But  if  the  Connecticut  men  said  much  of  God 
and  of  religion  they  gave  no  heed  to  the  King  of 
England  in  their  compact.  Upon  its  face  that  in- 
strument is  the  organic  law  of  an  independent  re- 
public, not  less  so  than  the  Watauga  Compact,  as 
we  know  it.f  That  there  was  a  tacit  acknowledg- 
ment "of  the  sovereignty  of  Great  Britain  is  at  least 
probable,  and  that  Connecticut  afterward  submit- 
ted to  that  power  is  certain.  The  Watauga  Com- 
pact was  made  a  hundred  and  thirty  years  later, 
and  by  men  who  had  been  born  in  America,  and 
had  imbibed  that  spirit  of  greater  independence 
which  the  free  life  of  the  colonies,  remote  from 
England,  had  begotten.  There  was  no  express 
declaration  of  independence  in  Connecticut,  nor 
was  there  in  Watauga,  so  far  as  we  know.  Thus 
the  points  in  favor  of  Watauga  in  the  comparison 

*  Beginnings  of  New  England,  p.  128. 

t  Poore's  Charters  and  Constitutions,  title,  Connecticut. 


THE   WATAUGA   ASSOCIATION.  ^ 

are  universal  suffrage  and  unqualified  religious 
liberty. 

Bamsey  and  Roosevelt  state  the  case  for  Watauga 
as  strongly  as  it  can  safely  be  put.  It  was  the  first 
free  and  independent  government  west  of  the  Alle- 
ghanies,  and  the  first  established  anywhere  by  men 
of  American  birth. 

In  August,  1776,  Watauga  sent  to  the  Legisla- 
ture of  North  Carolina  the  petition  to  which  I 
have  referred  above,  asking  to  be  annexed  to  that 
State.  It  is  to  be  assumed  that  the  word  "annex" 
was  used  advisedly,  as  the  petition  is  evidently  the 
work  of  a  man  of  fair  education.*  It  is  not  pos- 
sible, however,  that  the  Watauga  people  were  un- 
aware, even  in  1772,  that  their  country  belonged  to 
North  Carolina.  The  running  of  the  North  Caro- 
lina line  in  1771  was  the  prime  cause  of  the  estab- 
lishment of  their  Compact,  and  they  must  thence- 
forth have  been  conscious  of  the  right  of  that 
Commonwealth  to  extend  its  dominion  over  them. 
It  is  true  that  they  did  not  hesitate  to  assume  the 
highest  functions  of  government,  such  as  making 
treaties  and  purchasing  lands  in  their  corporate  ca- 
pacity, but  as  men  of  intelligence  they  must  have 


*  It  is  said  to  be  in  Sevier's  handwriting. 


28  CONSTITUTIONAL   HISTORY. 

known  that  when  North  Carolina  should  assert  her 
sovereignty,  they  would  have  neither  the  power 
nor  the  legal  right  to  resist.  After  their  incorpora- 
tion into  the  State,  they  conducted  themselves  as 
dutiful  though  not  devoted  citizens. 

This  petition  of  1776,  which  was  discovered 
among  the  neglected  archives  of  North  Carolina 
by  Dr.  Ramsey,  is  an  invaluable  document.  It 
breathes  the  spirit  of  the  truest  and  most  unselfish 
patriotism,  and  declares  that  it  is  presented  in  or- 
der that  the  signers  may  "share  in  the  glorious 
cause  of  liberty."  * 

The  spirit  of  the  people,  as  shown  in  this  peti- 
tion, reveals  the  spirit  of  their  Constitution.  They 
were  thoroughly  American  and  liberty  loving,  and 
for  their  own  government,  in  a  time  of  necessity, 
they  had  created  a  State  whose  institutions  exhibit 
in  crude  form  every  essential  quality  of  our  Ameri- 
can system  in  its  highest  development.  They  were 
able  to  govern  themselves,  but  "they  voluntarily 
surrendered  their  independence  in  order  that  they 
might  the  more  effectively  fight  for  the  liberty  of 
their  country.  Their  petition  makes  this  the  para- 
mount consideration. 


Ramsey,  p.  137. 


THE   WATAUGA   ASSOCIATION.  29 

The  "Watauga  Association  is  the  most  important 
fact  in  the  early  history  of  the  South-west.  It  may 
be  suggested,  with  the  greatest  deference  to  Mr.  Ban- 
croft, that  he  is  in  danger  of  misleading,  when  he  de- 
clares that  Watauga  "set  to  the  people  of  America 
the  example  of  erecting  themselves  into  a  State  in- 
dependent of  the  authority  of  the  British  king." 

If  it  be  intended  by  this  to  assert  that  the  Wa- 
tauga people  were  in  rebellion  against  England,  or 
that  they  were  actuated  by  what  Roosevelt,  speak- 
ing of  a  later  period,  calls  the  "separatist"  senti- 
ment, the  assertion,  it  is  respectfully  submitted,  is 
erroneous. 

The  Watauga  people  did  not  at  first  intend  nor 
wish  to  separate  from  England.  The  subject  prob- 
ably was  not  considered  when  they  formed  their 
government.  The  Association  was  the  creature  of 
necessity.  The  physical  separation  from  the  only 
established  government  which  was  entitled  to  juris- 
diction over  the  settlements  was  complete,  and  the 
people  were  compelled  to  make  their  own  govern- 
ment. If  North  Carolina  had  been  able  and  will- 
ing to  protect  them,  the  Association  probably 
never  would  have  been  formed.  That  the  senti- 
ment of  loyalty  to  England  had  in  all  the  colonies 
become  much  impaired  by  distance?  by  the  condi- 


30  CONSTITUTIONAL    HISTORY. 

tions  of  life  in  the  remote  West,  and  by  the  unjust 
policy  of  the  Crown,  may  be  admitted.  It  is  unde- 
niable, also,  that  the  Scotch-Irish  were  essentially 
independent  and  democratic,  and  that  some  of  the 
Watauga  settlers  had  taken  active  part  in  the 
Tryon  rebellion.  Nevertheless,  it  seems  certain 
that  the  prime,  and  indeed  the  sole,  motive  of  the 
founders  of  the  Association  was  not  opposition  to 
any  authority  whatever,  but  the  desire  to  create  an 
authority.  Mr.  Phelan  intimates  that  they  had 
hopes  of  becoming  an  independent  State,  and  it  is 
probably  true,  but  this  looked  to  the  future,  and 
was  not  the  motive  for  creating  the  Association. 

The  episode  loses  nothing  of  its  importance  by 
this  construction.  The  significant  facts  are  that 
the  people  had  become  self-reliant,  and  conscious  of 
their  ability  to  protect  arid  to  govern  themselves, 
and  that  in  organizing  their  State  they  not  only 
discarded  class  distinctions,  as  the  Connecticut  col- 
onists had  discarded  them  in  the  preceding  century, 
but  gave  to  all  freemen  the  right  of  suffrage,  and 
to  all  men  perfect  liberty  of  opinion. 

It  may  be  said  that  there  could  not  have  been 
classes,  nor  discrimination  in  civil  rights,  nor  pref- 
erence of  any  creed,  in  a  frontier  settlement  which 


THE    WATAUttA    ASSOCIATION.  31 

was  engaged  in  an  incessant  struggle  for  exist- 
ence, and  where  harmony  of  action  was  indispens- 
able ;  but  we  know  that  in  the  early  days  of  Mas- 
sachusetts, when  conditions  were  not  more  favor- 
able, nor  danger  less  constant,  bitter  internal  wars 
of  opinion  were  waged. 

If  in  the  seventeenth  century  there  were  no 
Americans,  in  the  last  half  of  the  eighteenth  cen- 
tury this  was  not  the  case.  There  was  then  a  dis- 
tinct American  race,  mainly  English  in  blood,  but 
highly  composite,  and  a  distinct  American  senti- 
ment.* These  Americans  were  loyal  to  the  great 
principles  of  Anglo-Saxon  freedom,  but  they,  or  at 
least  their  leaders,  were  wise  enough  to  see  that 
those  principles  not  only  admitted  of  the  equality 
of  men,  but  in  their  truest  interpretation  re- 
quired it. 

Every  condition  in  America,  which  had  come  to 
be  the  meeting  place  of  all  races  and  of  all  re- 
ligions, not  only  favored  but  exacted  the  most 
liberal  concession  and  toleration  in  matters  of  opin- 
ion. The  full  importance  of  the  individual  man 
was  first  recognized  and  declared  in  America.  By 
the  middle  of  the  eighteenth  century  conditions 

*  Winning  of  the  West,  Vol.  I,  p.  20. 


32  CONSTITUTIONAL    HISTORY. 

throughout  the  colonies  were  favorable  for  a  mani- 
festation of  this  American  sentiment. 

The  persistent  assertion  of  the  right  of  self  tax- 
ation by  the  larger  colonies,  and  the  Tryon  re- 
bellion in  North  Carolina  were  such  manifestations. 
Owing,  however,  as  it  appears,  to  purely  fortuitous 
circumstances,  the  Watauga  settlers  were  the  first 
to  embody  these  liberal  principles  in  actual  insti- 
tutions. It  may  justly  be  claimed  that  they  were 
peculiarly  prepared  for  this  step,  as  well  as  com- 
pelled to  it  by  their  circumstances.  Certainly  they 
were  the  first  Americans  to  establish  absolutely  free 
and  democratic  institutions.  They  were  obscure 
men,  and  their  community  was  little  considered  in 
the  older  settlements;  they  were,  therefore,  the 
forerunners  rather  than  the  leaders  of  the  great 
movement  that  was  at  hand. 

Nevertheless  their  influence  powerfully  affected 
not  only  the  contemporary,  but  also  the  later  his- 
tory of  the  South-west.  It  is  not  to  be  doubted 
that  the  republics  of  the  Cumberland  and  of  Tran- 
sylvania were  the  lineal  descendants  of  Watauga. 

But  I  repeat  that  while  Watauga  was  in  a  sense 
an  independent  community,  it  was  not  established 
in  conscious  rebellion  or  opposition  to  the  Crown. 
The  situation  required  a  government,  and  the  peo- 


THE   WATAUGA   ASSOCIATION.  33 

pie,  having  only  themselves  to  consult,  made  one  to 
suit  themselves.  The  fact  that  other  English  set- 
tlements, under  similar  conditions  and  at  the  same 
time,  in  Western  Pennsylvania  and  elsewhere,  did 
not  manifest  equal  self-reliance  and  independence, 
may  be  accepted  as  proof  that  the  Watauga  men 
were  of  more  advanced  principles  and  were  better 
prepared  for  the  change. 

It  does  not  matter  whether  they  or  the  Connecti- 
cut Puritans  established  the  first  independent  gov- 
ernment. They  did  not  consciously  imitate  any 
one;  they  were  brave,  honest,  God-fearing  men, 
and  true  patriots;  they  made  a  peculiar  and  im- 
portant place  for  themselves  in  history ;  their  in- 
fluence upon  succeeding  generations  has  been  the 
most  salutary,  and  we  have  every  reason  for  regard- 
ing them  with  pride  and  with  gratitude. 


34  CONSTITUTIONAL   HISTORY. 


CHAPTER  II. 

CUMBERLAND. 
1780-1783. 

"  Like  almost  all  those  in  America  who  have  as- 
cended to  eminent  celebrity,  he  had  not  a  noble 
lineage  to  boast  of,  nor  the  escutcheoned  armorials 
of  a  splendid  ancestry,  but  he  had  what  was  far  more 
valuable,  a  sound  mind,  a  healthy  constitution,  a 
robust  frame,  a  love  of  virtue,  an  intrepid  soul  and 
an  emulous  desire  for  honest  fame."  These  are  the 
flowing  words  with  which  John  Hay  wood,  the  first 
historian  of  Tennessee,  a  just  man  and  tenacious  of 
his  rhetoric,  describes  James  Robertson,  the  pioneer 
leader  of  Watauga  and  of  Cumberland. 

It  is  probable  that  Robertson  was  the  first  man  in 
Watauga ;  it  is  certain  that  he  was  the  first  in  Cum- 
berland. He  had  none  of  the  brilliancy  and  dash  of 
Sevier,  but  surpassed  him  in  solidity  of  character, 
in  firmness,  and  in  soundness  of  judgment.  He 
was  a  wise,  brave,  industrious,  persistent  Scotch- 
Irishman.  He  was  the  safest  and  the  surest  of  our 
pioneer  leaders.  History,  even  in  these  later  years 
of  renewed  interest,  has  not  dealt  justly  with  him. 


JAMES  ROBERTSON, 

The  Cumberland  Leader. 


CUMBERLAND.  35 

He  was  a  man  of  exceptional  intellectual  and  moral 
endowments,  and  was  born  to  leadership. 

I  am  earnest  in  calling  attention  to  his  character, 
because  through  him  we  may  know  the  qualities 
of  the  better  element  of  the  Cumberland  settlers. 

We  find  also,  in  the  earliest  Annals  of  Middle 
Tennessee,  the  names  of  Lucas,  Tatham  and  Isbell, 
whom  we  have  already  met  in  Watauga.*  Politi- 
cally, Cumberland  was  the  offspring  of  Watauga. 
Robertson  had  been  almost  ten  years  at  Watauga 
when  the  westward  impulse,  and,  it  may  be,  the 
land  fever,  seized  him;  and  taking  his  life  in  his 
hand,  he  went  long  journeys  into  the  untrodden 
wilderness.  There  were  others  as  reckless  as  he, 
and  all  came  back  bringing  the  most  alluring 
accounts  of  the  fertility  and  beauty  of  the  lands 
of  the  lower  Cumberland.  Through  Cumberland 
Gap,  or  down  the  long  and  winding  course  of  the 
Tennessee,  and  up  the  Ohio  and  the  Cumberland, 
companies  of  adventurers  starting  from  Watauga 
mainly,  found  their  way  to  this  new  land  of  plenty. 
Another  Scotch-Irish  Saxon  settlement  sprang  up 
on  the  site  of  the  future  capital  of  Tennessee, 
under  the  leadership  of  Scotch-Irish  Robertson. 

*  Putnam,  History  of  Middle  Tennessee,  p.  26. 


36  CONSTITUTIONAL   HISTORY. 

The  Cumberland  bluff  was  not  a  bed  of  roses. 
Furious  and  incessant  assaults  of  the  Indians  fairly 
broke  the  spirit  of  the  settlers  at  one  time,  and  all 
their  leader's  energy  of  character  and  of  conduct 
was  needed  to  prevent  them  from  abandoning  the 
enterprise  arid  returning  to  the  East. 

By  the  first. of  May,  1780,  there  were  grouped 
about  Nashborough *  seven. other  stations  of  suffi- 
cient importance  to  be  represented  in  the  conven- 
tion which  organized  a  government. 

The  constitution  which  was  framed  by  this  con- 
vention, which  met  at  Nashborough  on  the  first 
day  of  May,  1780,  has  been  preserved  except  the 
"first  page;"  presumably  a  foolscap  page  of  the 
age  of  caligraphy  which  preceded  the  invention  of 
the  atrocious  steel  pen.f  On  the  thirteenth  of  the 
same  month,  certain  important  amendments  were 
added,  and  these  have  been  saved  intact. 

Two  hundred  and  fifty-six  persons  signed  this 
instrument,  and  .the  list  might  have  been  copied 
from  the  register  of  a  Belfast  or  Coleraine  emigrant 
ship. 

This  was  another  State  founded  upon  the  unani- 
mous consent  of  the  governed.  The  Constitution 

*  Now  Nashville.  t  Putnam,  pp.  94-102. 


CUMBERLAND.  37 

however  contains  an  express  recognition  of  the 
fact  that  the  settlement  belonged  to  North  Carolina. 
The  language  of  the  instrument  is  in  the  main  pre- 
cisely such  as  we  believe  the  Watauga  Compact  to 
have  contained.  The  following  is  an  illustration: 
"As  this  settlement  is  in  its  infancy,  unknown  to 
government,  and  not  included  within  any  county 
within  North  Carolina,  the  State  to  which  it  be- 
longs, so  as  to  derive  the  advantages  of  those 
wholesome  and  salutary  laws,  for  the  protection 
and  benefit  of  its  citizens,  we  find  ourselves  con- 
strained from  necessity  to  adopt  this  temporary 
method  of  restraining  the  licentious,  and  supplying, 
by  unanimous  consent,  the  blessings  flowing  from 
'a  just  and  equitable  government."* 

These  words  so  accurately  represent  the  condi- 
tion and  the  purposes  of  the  Watauga  settlers  that 
one  is  ready  to  believe  that  they  are  borrowed  from 
the  older  compact. 

Putnam,  whose  history  of  Middle  Tennessee  is  a 
book  of  genuine  and  enduring  value,  in  which  the 
narrative  is  richly  embroidered  with  quotations 
from  the  poets,  which  are  more  or  less  apposite, 
summarizes  the  Cumberland  Constitution  as  fol- 
lows :  "  Which  said  persons,  or  a  majority  of  them, 

*  Putnam,  p.  97. 


88  CONSTITUTIONAL   HISTORY. 

after  being  bound  by  the  solemnity  of  an  oath,  to 
do  equal  and  impartial  justice  between  all  contend- 
ing parties,  etc.,  shall  be  empowered  and  compe- 
tent to  settle  all  controversies  relative  to  locations 
and  improvements  of  lands;  all  other  matters  and 
questions  of  dispute  among  the  settlers ;  protecting 
the  reasonable  claims  of  those  who  may  have  re- 
turned for  their  families ;  providing  implements  of 
husbandry  and  food  for  such  as  might  arrive  with- 
out such  necessaries ;  making  especial  provision  for 
widows  and  orphans,  whose  husbands  or  fathers 
may  die  or  be  killed  by  the  savages;  guaranteeing 
equal  rights,  mutual  protection  and  impartial  jus- 
tice; pledging  themselves  most  solemnly  and  sa- 
credly to  promote  the  peace,  happiness  and  well- 
being  of  the  community;  to  suppress  vice  and  pun- 
ish crime."  * 

This  glowing  and  somewhat  incoherent  state- 
ment is  fairly  in  accord  with  the  facts.  The  Cum- 
berland Constitution  is  an  admirable  document,  of 
excellent  literary  quality.  It  shows  a  clear  percep- 
tion of  the  essential  principles  of  popular  govern- 
ment. A  high  order  of  intelligence  and  of  enlight- 
ened public  spirit  is  manifest  in  every  part  of  it. 

*  Putnam,  p.  90. 


CUMBERLAND.  39 

Descending  to  details,  we  find  that  its  framers 
wisely  gave  careful  attention  to  the  subject  of  land 
locations  and  improvements.  Land  controversies 
were  the  bane  of  all  the  West  in  early  times,  the 
sources  of  ruinous  litigation,  and  not  infrequently 
of  bloodshed.  This  is  the  subject  first  mentioned 
and  most  extensively  treated  in  that  part  of  the 
instrument  which  has  been  preserved,  and  the  reg- 
ulations established  are  eminently  wise  and  just. 
Subsequent  sections  provide  for  the  administration 
of  the  departments  and  affairs  of  an  orderly  gov- 
ernment. 

In  Watauga  a  committee  of  thirteen  had  been 
appointed  by  the  representative  assembly.  In 
Cumberland  a  committee  of  twelve  was  chosen  by 
the  people  as  a  governing  body.  I  do  not  find  the 
equivalent  of  the  sub-committee  or  court  of  five, 
which  seems  to  have  had  the  actual  administration 
in  Watauga.  The  committee  of  twelve  are  referred 
to  in  the  instrument  itself  as  "  Judges,  Triers  or 
General  Arbitrators,"  *  and  a  majority  of  them 
was  competent  to  transact  all  public  business. 
They  were  elected  from  the  various  stations,  by 
the  votes  of  all  free  men  over  the  age  of  twenty- 

*  Putnam,  p.  97. 


40  CONSTITUTIONAL   HISTORY. 

one  years.  At  least  it  is  inferred,  with  good  rea- 
son, that  this  was  the  age  prescribed.  An  unfor- 
tunate mutilation  makes  it  impossible  to  speak 
with  certainty. 

Vacancies  in  the  committee  were  filled  by  vote 
of  the  electors  of  the  stations  losing  representa- 
tives, and  the  highest  regard  for  popular  rights 
was  shown  in  the  following  provision:  "That  as 
often  as  the  people  in  general  are  dissatisfied  with 
the  doings  of  the  i Judges  or  Triers'  so  to  be 
chosen,  they  may  call  a  new  election  at  any  of  the 
said  stations,  and  elect  others  in  their  stead."  It 
will  hardly  be  denied  that  this  was  essentially  a 
democratic  Constitution. 

The  Judges  or  Triers  were  declared  to  be  the 
"  proper  court  or  jurisdiction"  for  the  recovery  of 
any  debt  or  damage,  provided  the  cause  of  action 
had  arisen  among  the  settlers  themselves  at  a  time 
when  they  were  beyond  the  limits  of  established 
government.  Cases  involving  one  hundred  dollars 
or  less  were  tried  before  three  of  the  judges,  whose 
decision  was  final.  If  the  amount  involved  was 
larger,  it  seems  that  three  judges  might  still  hear 
the  cause,  but  an  appeal  would  lie  to  the  entire 
court.  Upon  the  hearing  of  these  appeals,  the 
three  judges,  who  had  officiated  as  a  lower  court, 


CUMBERLAND.  41 

were  excluded,  and  nine  members  constituted  a 
full  bench,  tbe  concurrence  of  seven  being  neces- 
sary to  a  decision.  The  costs  were  taxed  accord- 
ing to  the  discretion  of  the  court,  and  the  judg- 
ment was  executed  by  persons  designated  by  it. 

The  judges  had  general  criminal  jurisdiction, 
but  they  were  forbidden  to  proceed  with  execution, 
aso  far  as  to  effect  life  or  member;  and  if  any 
case  should  be  brought  before  them  whose  crime 
is  or  shall  be  dangerous  to  the  State,  or  for  which 
the  benefit  of  clergy  is  taken  away  by  law,"  then 
the  offender  was  to  be  sent  under  guard  to  the 
place  where  the  offense  had  been  committed,  or  to 
a  place  where  a  legal  trial  could  be  had. 

A  unique  feature  of  the  articles  is  that  they  were 
intended  to  be  signed  and  apparently  were  signed 
by  Richard  Henderson  as  an  independent  contract- 
ing party.*  Henderson  was  the  manager  of  the 
company  from  whom  the  people  purchased  their 
lands,  and  it  seems  that  they  not  only  bound  them- 
selves to  abide  by  their  agreement,  in  so  far  as  it 
prescribed  rules  of  conduct,  but  were  contracting 
in  the  same  instrument  with  Henderson  or  with  his 
company.  It  is  expressly  recited  in  the  articles 

*  Putnam,  p.  96. 


42  CONSTITUTIONAL   HISTORY. 

"  that  the  said  Richard  Henderson  on  his  part  does 
hereby  agree,"  etc.  The  first  name  on  the  list  of 
signers  is  that  of  Richard  Henderson,  who  agreed 
that  26£  13s.  4d.  current  money  for  one  hundred 
acres  should  be  the  price  of  the  lands. 

The  articles  conclude  with  the  declaration  that 
the  signers  do  not  desire  to  be  exempt  from  their 
"  ratable  share  of  the  public  expense  of  the  war, 
nor  from  any  other  contingent  charges  of  govern- 
ment," and  with  a  prayer  addressed  to  the  Legis- 
lature of  North  Carolina  for  immediate  aid  and  pro- 
tection,, and  for  the  erection  of  a  county  to  include 
the  settlements,  and  for  the  appointment  of  officers 
for  "  the  discharge  of  public  duties." 

It  is  believed  by  some  that  Henderson  was  the 
author  of  this  instrument,  but  it  is  much  more  prob- 
able that  the  honor  belongs  to  Robertson,  although 
the  paper  certainly  was  drafted  by  some  one  of  bet- 
ter education. 

There  is  no  reason  to  doubt  that  Robertson  had 
the  chief  part  in  the  formation  of  the  constitution 
and  of  the  government.  He  was  already  acting  as 
the  military  leader,"  and  as  soon  as  the  Articles  were 
adopted,  he  was  made  Chairman  of  the  Judges  or 
Arbitrators.  His  influence  was  paramount  in  every 
thing. 


CUMBERLAND.  43 

The  points  of  similarity  between  the  Cumber- 
land Compact  and  the  Watauga  Articles,  as  we 
know  them,  are  so  numerous  as  necessarily  to  attract 
attention,  even  if  the  Cumberland  document  had 
been  prepared  by  men  who  had  had  no  connection 
with  Watauga ;  but  when  we  put  together  the  facts 
that  the  people  of  the  two  settlements  were  of  the 
same  race  and  training,  that  the  conditions  attend- 
ing the  formation  of  the  two  governments  were 
identical,  that  Robertson,  the  Watauga  leader,  was 
also  the  Cumberland  leader,  and  that  he  had  with 
him  in  Cumberland  three  of  the  most  influential 
members  of  the  Watauga  Association,  the  conclu- 
sion that  we  may  discover  in  the  Cumberland  Com- 
pact all  the  essential  features  of  the  Watauga  Ar- 
ticles, is  irresistible. 

Certain  minor  points  of  difference  are  known, 
but  they  are  not  at  all  inconsistent  with  this  infer- 
ence. There  were  thirteen  comniitteemen  in  Wa- 
tauga, who  were  chosen  by  a  convention,  and  twelve 
in  Cumberland,  who  were  elected  by  the  people. 

The  most  striking  of  these  variances  is  the  omis- 
sion of  the  sub-committee  or  court  of  five,  from  the 
Cumberland  organization.  It  is  impossible  to  say 
with  certainty  why  this  was  done  ;  my  own  opinion 


44  CONSTITUTIONAL   HISTORY. 

is  that  the  Watauga  people  had  found  by  expe- 
rience that  it  was  not  necessary  to  have  both  the 
court  of  five  and  the  committee  of  thirteen.  It  is 
to  be  inferred  that  in  Watauga  the  larger  body  be- 
came practically  of  no  value,  rendering  no  service. 

As  the  Scotch-Irish  are  tenacious  of  personal 
rights  and  opposed  to  the  centralization  of  power, 
whether  ecclesiastical  or  political,  it  may  be  that 
after  experience,  they  preferred  not  to  grant  so 
much  authority  to  so  few  men. 

It  should  be  said  that  the  Cumberland  Compact 
recognizes  the  dependence  of  the  people  upon 
"Divine  Providence,"  and  breathes  a  spirit  of  sin- 
cere reverence  and  piety,  as  well  as  of  patriotism. 

We  have  inferred  that  universal  suffrage  pre- 
vailed in  Watauga;  we  know  thaf  it  prevailed  in 
Cumberland.  We  have  also  inferred  that  in  Wa- 
tauga there  was  religious  freedom ;  it  is  certain 
that  in  the  Cumberland  Constitution  nothing  what- 
ever is  said  upon  the  subject. 

The  thoroughly  Anglican  quality  of  the  Cum- 
berland Compact  is  obvious.  Eoosevelt  com- 
pares it  to  the  ancient  "  Court  Leet,"  Phelan  says 
of  the  Watauga  settlers  that  they  selected  from 
"  the  old  store-house  of  English  law  and  prece- 


CUMBERLAND.  45 

dent,"  and  the  saying  is  not  less  applicable  to  Cum- 
berland. 

As  I  shall  be  unable  to  speak  of  it  elsewhere,  I 
call  attention  here  to  the  very  interesting  fact  that 
in  the  year  1788,  after  the  dissolution  of  the  Frank- 
lin government,  the  people  "  inhabiting  South  of 
Holston,  French  Broad  and  Big  Pigeon  rivers,"  in 
East  Tennessee,  entered  into  written  articles  of  as- 
sociation establishing  a  government  for  themselves, 
and  no  doubt  following  closely  the  Watauga  plan. 
Their  purposes  are  declared  in  the  following  lan- 
guage :  "  Being  at  present  destitute  of  regular  gov- 
ernment and  laws,  and  being  fully  sensible  that  the 
blessings  of  nature  can  only  be  obtained  and  rights 
secured  by  regular  society,  and  North  Carolina  not 
having  extended  her  government  to  this  quarter,  it 
is  rendered  absolutely  necessary  for  the  preserva- 
tion of  peace,  the  good  order,  and  the  security  of 
life,  liberty,  and  property  to  individuals,  to  en- 
ter into  the  following  social  compact  as  a  tempo- 
rary expedient  against  greater  evils."  *  The  other 
provisions  are  of  a  kind  to  afford  convincing  proof 
that  this  third  independent  constitution  is,  like  the 
Cumberland  Compact,  substantially  a  reproduction 

*  Ramsey,  p.  435. 


46  CONSTITUTIONAL   HISTORY. 

of  the  Watauga  Articles.  Oh  account  of  the  prox- 
imity of  the  French  Broad  people  to  Watauga,  it 
is  probable  that  this  last  constitution  follows  the 
Watauga  Articles  even  more  closely  than  the  Cum- 
berland Compact  followed  them. 

I  have  endeavored  to  emphasize  the  two  facts 
that  the  people  of  Watauga  and  of  Cumberland 
were  principally  Scotch-Irish,  and  that  their  insti- 
tutions were  wholly  English.  It  is  surprising  to 
find  intelligent  people  maintaining  that  the  Scotch- 
Irish  are  Celts.  Undoubtedly  the  race  has  re- 
ceived a  large  infusion  of  Celtic  blood,  but  so  have 
the  Saxons  of  England.  The  lowland  Scotchmen 
are  Teutons,  and  their  political  and  social  training 
and  institutions  are  necessarily  Teutonic.  Upon 
this  subject  the  best  authorities  are  in  accord.* 

If  to  the  student  of  history  Cumberland  is  less 
interesting  than  Watauga,  it  is  because  Watauga 

*  Reclus  Europe,  Vol.  4,  pp.  309  and  310;  E.  A.  Freeman, 
English  People  in  its  Three  Homes,  p.  81 ;  Wm.  Wirt  Henry, 
"Scotch-Irish  in  the  South,"  Proceedings  Scotch-Irish  Con- 
gress, 1889,  p.  113. 

"The  population  of  Scotland,  with  the  exception  of  the 
Celtic  tribes  which  are  thinly  scattered  over  the  Hebrides,  and 
over  the  mountainous  parts  of  the  northern  shires,  was  of  the 
same  blood  with  the  population  of  England."  Macaulay, 
Hist.  England,  Vol.  1,  pp.  50,  51. 


CUMBERLAND.  47 

was  the  original,  of  which  Cumberland,  like  Tran- 
sylvania, was  a  reproduction.  I  can  say  nothing  of 
the  social  or  political  life  of  Cumberland  that  I 
have  not  already  said  of  Watauga.  We  find  in  the 
two  communities  the  same  race,  the  same  leader, 
similar  environment  and  conditions,  the  same  ne- 
cessities and  purposes. 

Watauga  and  Cumberland  arose  from  causes  and 
by  processes  which  are  identical,  and  they  are  iden- 
tical in  significance. 

The  Cumberland  judges  are  entitled  to  honor- 
able mention.  They  were  James  Robertson,  George 
Freeland,  Thomas  Molloy,  Isaac  Linsey,  David 
Rounsevall,  Heydon  Wells,  James  Mauldin,  Eben- 
ezer  Titus,  Samuel  Barton,  and  Andrew  Ewin. 

We  are  indebted  to  Putnam  for  the  preservation 
of  the  Cumberland  Compact.  He  deserves  our 
gratitude  also  for  a  trustworthy  account  of  one  of 
the  most  interesting  and  admirable  phases  of  Amer- 
ican history. 

In  April,  1783,  the  Legislature  of  North  Caro- 
lina created  the  County  of  Davidson,  and  Cumber- 
land passed  into  history. 


48  CONSTITUTIONAL     HISTORY. 


CHAPTER  III. 

FRANKLIN. 
1784-1788. 

We  return  now  to  East  Tennessee.  The  State  of 
Franklin  fills  a  much  larger  place  in  historical 
writings  than  either  Cumberland  or  "Watauga. 
This  can  be  justified  only  by  the  fact  that  its  field 
of  action  was  more  conspicuous.  In  historic  im- 
portance and  significance  it  is  inferior  to  the 
others. 

Its  beginnings  in  some  respect  resemble  those  of 
Watauga  and  of  Cumberland,  but  its  later  history 
is  one  of  petty  faction.  The  facts  are  familiar,  and 
need  not  be  stated  at  length. 

Watauga  had  been  merged  into  North  Carolina, 
and  for  six  years  the  people  had  recognized  the 
authority  of  that  State.  In  June,  1784,  the  Legis- 
lature, without  notice  to  the  inhabitants,  ceded 
what  is  now  the  State  of  Tennessee  to  the  general 
government.  It  may  be  conceded  that  this  measure 
was  largely  justified  by  an  honest  desire,  inspired 
by  the  request  of  Congress,  to  aid  the  Con- 
federation to  meet  its  enormous  and  pressing 


JOHN  SEVIER, 

President  of  Franklin  Conventions. 


FRANKLIN.  49 

debts.  If  this  had  been  the  sole  reason  it  would 
have  been  beyond  criticism,  if  the  act  had  provided 
for  the  protection  of  the  settlers. 

The  cession  was  conditioned  upon  its  acceptance 
by  Congress  within  two  years.  The  Tennessee 
counties  no  doubt  would  have  welcomed  a  separa- 
ration  made  in  a  proper  manner,  or  in  one  which 
they  considered  proper,  and  their  representatives  in 
the  Legislature  voted  for  the  cession,  probably  with- 
out apprehending  its  full  significance.  The  disap- 
proval of  their  constituents,  however,  was  instantly 
and  vehemently  manifested.  Injustice,  perfidy,  ty- 
ranny, were  the  favorite  words  for  characterizing  the 
conduct  of  North  Carolina.  The  vigorous  vocabu- 
lary of  the  frontier  was  exhausted  in  denunciation. 
The  people  were  furiously,  not  to  say  absurdly, 
angry.  One  is. disposed  to  agree  with  Phelan  in 
ascribing  much  of  this  to  wounded  vanity.  The 
Scotch-Irish  self-esteem,  a  quality  well  developed  in 
our  sturdy  race,  was  offended  beyond  endurance. 
But  the  popular  feeling  was  not  without  justifica- 
tion. The  Watauga  settlers  had  been  much  dis- 
tressed by  the  fact,  which  was  developed  in  1771, 
that  they  belonged  to  North  Carolina,  instead  of 
Virginia,  and  the  mother  State  was  no  more 
anxious  to  have  them,  than  they  were  to  belong  to 


50  CONSTITUTIONAL     HISTORY. 

her.  One  of  the  least  efficient  of  the  Colonial 
and  early  State  governments  was  that  of  North 
Carolina.  The  irrepressible  turbulence  of  the 
people,  especially  in  Colonial  times,  continually 
prevented  efficient  administration.  It  is  true  that 
this  fault  became  a  virtue  when  in  1775  it  took  the 
shape  of  a  vigorous  and  fearless  opposition  to  En- 
glish misrule,  but  in  ordinary  times,  its  consequences 
were  unfortunate,  especially  to  the  settlers  west  of 
the  mountains.  The  Indians  incessantly  threatened 
them,  and  lawless  men  of  their  own  race  constantly 
preyed  upon  them. 

While  it  is  true  that  the  Watauga  people  were 
exacting,  persistent,  .and  often  unreasonable,  it  is 
also  true  that  appeals  to  the  State  for  assistance 
and  for  protection  in  times  of  urgent  need  fre- 
quently went  unheeded.  The  settlers  were  poor, 
and  contributed  little  to  the  public  treasury,  upo.n 
which  they  made  many  demands. 

There  was  no  sympathy  between  the  Watauga 
counties  arid  the  remainder  of  the  State.  The 
judicial  system  of  the  State  was  not  extended  in 
its  complete  form  west  of  the  mountains,  nor  was 
the  military  system.*  The  State  continually  com- 

"The  Superior  Court  alone  bad  jurisdiction  of  felonies,  and 


FRANKLIN.  51 

plained  of  the  exactions  of  the  Watauga  people, 
and  the  mutual  dislike  which  had  existed  from  the 
first  was  daily  intensified.  It  must  be  remembered 
that  a  majority  of  the  first  settlers  in  Watauga  had 
come  from  Virginia,  and  were  much  attached  to 
that  State.  Many  of  those  who  were  from  North 
Carolina  had  come  on  account  of  dissatisfaction 
with  the  government. 

High  ranges  of  mountains  separated  Watauga 
from  Carolina,  preventing  free  communication  and 
intercourse,  and  thus  there  were  many  reasons  why 
the  Washington  district  should  not  have  remained 
a  part  of  the  State.  This  fact  was  recognized  in 
the  bill  of  rights  prefixed  to  the  Carolina  constitu- 
tion of  1776.  It  is  probable  that  if  the  cession  had 
not  been  made  by  North  Carolina,  a  separation 
would  have  occurred  in  a  few  years.  It  would  have 
been  the  natural  result  of  the  mutual  dislike  and 
the  mutual  desire.  When  the  Cession  Act  was 
passed,  many  of  the  inhabitants  of  Watauga  be- 
lieved that  the  jurisdiction  of  North  Carolina  had 
been  withdrawn  entirely,  and  that  they  wrere  as  much 

no  judge  of  the  Western  Circuit  had  ever  been  appointed. 
Only  a  brigadier-general  could  call  out  the  entire  militia  of  a 
district,  and  there  was  at  that  time  no  brigadier-general." 
Phelan,  History  of  Tennessee,  p.  70. 


52  CONSTITUTIONAL   HISTORY. 

without  government  as  they  had  been  twelve  years 
before,  when  they  had  organized  the  Watauga  As- 
sociation. In  this  they  were  mistaken,  but  the  be- 
lief was  honestly  entertained,  and  it  materially 
affected  their  course.  But  all  believed,  not  with- 
out reason,  that  as  the  State  had  been  remiss  in 
the  discharge  of  her  duty  before  the  cession,  she 
would  now  withhold  her  assistance  entirely.  In 
many  minds  there  was  doubt  of  the  authority  and 
of  the  willingness  of  the  Congress  of  the  Confed- 
eration to  create  new  States.  Ramsey  mentions 
this  as  one  of  the  strongest  arguments  in  justifica- 
tion of  Franklin.* 

Without  going  farther  into  historical  details,  it 
seems  that  the  impartial  student  can  hardly  deny 
that  in  its  inception  the  Franklin  movement  was 
justifiable.  The  people  believed  then,  and  had  no 
little  reason  for  believing,  that  a  government  of 
their  own  was  a  necessity. 

In  November,  1784,  the  Cession  Act  was  repealed, 
and  laws  were  passed  providing  for  the  extension 
of  the  jurisdiction  of  the  State  in  its  civil  and  in  its 
military  branches  over  all  the  Western  Counties, 
thus  promising  them  better  government  and  more 
protection  than  ever  before. 

*  Ramsey,  p.  439. 


FRANKLIN.  53 

Iii  view  of  the  facts  that  the  Watauga  territory 
unquestionably  belonged  to  ^N"orth  Carolina,  and  that 
the  people  were  too  weak  to  resist  the  State,  mod- 
erate and  prudent  minds  may  now  be  of  the  opin- 
ion that  the  movement  for  independence  should 
have  been  abandoned  when  the  Act  of  Cession  was 
repealed,  but  it  was  not  so  easy  to  consider  the  sub- 
ject with  impartiality  and  serenity  then  as  it  is  now 
after  the  lapse  of  more  than  a  century. 

If  it  had  been  true  that  the  Watauga  people 
had  grievances  which  justified  them  in  armed  re- 
sistance, it  is  certain  that  they  were  not  able  to 
withstand  the  State,  and  therefore,  while  we  may 
not  hold  them  inexcusable,  we  can  hardly  escape 
the  conclusion  that  their  course  after  the  repeal  of 
the  Cession  Act  was  ill-advised  and  unfortunate. 
But  however  philosophically  we  may  consider  the 
matter  now,  a  Tennesseean  will  with  difficulty 
withhold  his  sympathy  from  Franklin. 

It  may  be  well  to  mention  the  fact  that  Sevier, 
who  was  a  civil  and  military  leader  in  Wa- 
tauga, was  appointed  Brigadier- General  for  the 
Washington  District  upon  the  repeal  of  the  Cession, 
and  that  he  advised  the  abandonment  of  the  under- 
taking. This  little  Revolution,  however,  had  the 


54  CONSTITUTIONAL   HISTORY. 

proverbial  quality  of  its  kind  and  would  not  go 
backward,  and  Sevier  went  forward  with  it. 

Three  several  Conventions  were  held,  and  the 
last  of  them  adopted  a  Constitution.  The  second 
Convention  had  agreed  upon  a  Constitution  subject 
to  the  ratification  of  a  subsequent  assembly.  The 
unit  of  representation  in  the  first  Convention  was 
the  captains  company, -but  subsequently  each  county 
elected  five  members. 

These  Conventions  were  so  numerous  and  so  ec- 
centric that  much  confusion  has  arisen  in  regard  to 
them.  The  first  met  at  Jonesboro,  August  23, 
1784 ;  'the  second  at  Jonesboro  in  December,  1784 ; 
the  third  at  Greeneville  in  December,  1785.* 
Sevier  was  president  of  all  three ;  Landon  Carter 
was  Secretary  of  the  first,  and  F.  A.  Ramsey  of  the 
second.  The  form  of  government  until  the  adop- 
tion of  the  Constitution  by  the  Convention  of 
December,  1785,  was  that  of  North  Carolina.f 
Greeneville  was  made  the  Capital  of  the  State. 

Before  the  meeting  of  the  last  convention,  the 
Rev.  Samuel  Houston,  "  with  the  advice  and  assist- 
ance of  some  judicious  friends,"  as  Ramsey  puts  it, 

*  I  have  followed  Haywood  as  to  these  dates.    See  pp.  150, 
154,  155-170. 
t  Ramsey,  p.  296 ;  Haywood,  p.  163. 


FRANKLIN.  55 

prepared  a  Constitution  to  be  submitted  to  that 
body.*  In  this  Constitution  the  State  was  called 
Frankland.  The  instrument  contained  a  number  of 
innovations  upon  English  law  and  precedent,  and 
does  not  seem  to  have  had  the  approval  of  Mr. 
Houston's  professional  brethren,  because  it  is  re- 
corded that  when  it  was  presented  to  the  Conven- 
tion, the  Rev.  Hezekiah  Balch,  being  not  a  mem- 
ber, but  an  interested  spectator,  having  obtained 
leave  to  offer  some  remarks,  "  animadverted  very 
severely  "  upon  it,  and  especially  upon  the  section 
which  provided  for  the  institutions  of  learning. 
After  much  discussion,  the  Houston  Constitution 
was  rejected  by  a  very  small  majority,  and  the  Con- 
stitution of  North  Carolina,  with  such  modifica- 
tions as  were  made  necessary  by  the  change  of 
conditions,  was  established  as  the  organic  law  of 
Franklin*  the  name  Frankland  having  been  rejected 
with  the  Houston  Constitution.  But  while  this 
Constitution  was  finally  rejected  by  a  very  small 
majority,  it  is  a  document  of  great  interest  and  im- 
portance, because  it  is  shown  to  have  represented 
the  opinions  and  wishes  of  almost  one-half  the 
members  of  the  Convention,  arid  therefore  of  a 

*  Ramsey,  p.  323. 


56  CONSTITUTIONAL    HISTORY. 

large  number  of  the  people.  It  is  an  elaborate 
paper  ornately  written. 

We  have  found  the  Watauga  Petition  of  1776 
and  the  Cumberland  Compact  to  have  been  plain, 
straightforward,  and  simple.  The  people  of  those 
communities  were  confronted  by  stern  and  exigent 
conditions,  and  they  used  in  the  rough  the  material 
which  they  had  at  hand  in  making  governments 
for  themselves.  They  had  no  time  for  theories. 
Their  purposes  were  wholly  practical,  and  they 
used  only  elementary  principles,  erecting  a  strong 
but  rude  framework,  and  caring  nothing  for  finish. 

In  1784,  conditions  in  Watauga  had  changed 
materially.  The  population  had  increased  greatly, 
and  evidently  the  preachers  and  the  lawyers  had 
begun  to  make  their  impress  upon  the  community. 
Four  counties  had  been  organized :  Washington, 
Greene,  and  Sullivan  in  East  Tennessee,  and  David- 
son in  Middle  Tennessee ;  the  last,  however,  did 
not  enter  into  the  Franklin  movement,  and  appa- 
rently had  little  sympathy  with  it. 

The  population  west  of  the  mountains  at  this  time 
was  about  25,000.  The  people  being  stronger  and 
less  apprehensive  of  the  Indians,  had  opportunity  to 
consider  their  affairs,  and  in  making  their  new  Con- 
stitution they  were  not  content  to  announce  merely 


FRANKLIN.  57 

fundamental  and  general  principles,  but  wished  to 
establish  a  detailed  and  completed  scheme  of  gov- 
ernment. 

It  is  evident  that  Mr.  Houston  was  a  man  of 
education  and  of  literary  aspiration,  that  his  ideas 
and  the  ideas  of  his  "judicious  friends"  were  ad- 
vanced for  that  time,  and  that  he  and  his  supporters 
were  infected  with  the  disposition  to  experiment  in 
government,  which  was  a  characteristic  of  the  time 
both  in  Europe  and  in  America. 

The  plain  people  had  made  the  two  earlier  com- 
pacts, but  the  Houston  Constitution,  in  its  original 
features,  is  unmistakably  the  work  of  men  of  learn- 
ing and  of  pious  inclinings.  The  contest  in  the 
Convention  was  between  the  men  of  experience 
and  the  men  of  theories,  and  the  triumph  of  the 
practical  men,  if  hard- won,  was  complete. 

The  Bill  of  Eights  of  the  rejected  Constitution 
is  taken  almost  literally  from  the  North  Carolina 
Bill  of  Rights,  and  it  is  very  evident  that  the  Caro- 
lina Constitution  is  the  basis  of  the  entire  instru- 
ment. 

I  call  attention  to  some  of  its  more  unique  and 
characteristic  features.*  The  Legislative  power 

*  This  Constitution  is  set  out  in  full  by  Ramsey,  pp.  325-334. 


58  CONSTITUTIONAL    HISTORY. 

was  vested  in  one  body,  which  was  to  be  composed 
of  the  citizens  "  most  noted  for  wisdom  and  virtue," 
provided  they  owned  one  hundred  acres,  or  fifty 
pounds  worth  of  land.  ~No  person  was  eligible  to 
any  civil  office,  who  was  of  immoral  character  or 
guilty  of  "  such  flagrant  enormities  "  as  drunken- 
ness, gaming,  profane  swearing,  lewdness,  sabbath 
breaking,  and  such  like,  or  who  should  either  by 
word  or  by  writing  deny  any  of  the  following 
propositions : 

1.  That  there  is  one  living  and  true  God,  the 
Creator  and  Governor  of  the  Universe. 

2.  That  there  is  a  future  state  of  rewards  and 
punishments. 

3.  That  the  scriptures  of  the  Old  and  New  Testa- 
ments are  given  by  divine  inspiration. 

4.  That  there  are  th'ree  divine  persons   in   the 
Godhead,  co-equal  and  co-essential. 

The  same  section  which  creates  these  limitations, 
also  excludes  from  the  Legislature  "ministers  of 
the  gospel,  attorneys  at  law,  and  doctors  of  physic." 
It  may  be  remarked  in  passing,  that  the  frontier 
village  is  the  normal  habitat  of  the  shyster,  and 
therefore  such  communities  are  not  to  be  censured 
for  failing  to  know  the  essential  worth  and  the 
beneficence  of  the  legal  profession. 


FRANKLIN.  59 

All  acts  were  to  have  explanatory  preambles,  and 
no  bill  could  become  a  law  at  the  first  session  to 
which  it  was  presented. 

The  House  of  Representatives  was  to  choose  its 
own  Speaker  "  and  all  other  officers,  Treasurer, 
Secretary  of  State,  Superior  Judges,  Auditors, 
members  of  Congress."  But  it  wTas  declared  that, 
as  a  "  free  people  have  a  right  of  free  suffrage  for 
all  officers  of  government  that  can  be  chosen  by  the 
people ,  the  freemen  of  this  State  shall  elect  Governor 
and  Counsellors,  Justices  of  the  Peace  for  each 
county,  Coroner,  Sheriff,"  and  all  officers  except 
such  as  the  Assembly  was  empowered  to  elect. 
The  Governor  was  to  be  chosen  annually. 

The  State  was  to  be  divided  into  six  grand  divi- 
sions, each  of  which  was  to  elect  a  "  Counsellor." 
These  "  Counsellors"  were  to  be  a  dissolving  board, 
divided  into  three  classes,  the  members  of  one  class 
to  be  changed  each  year;  the  Governor  and  the 
Council  were  to  meet  annually  with  the  Assembly. 

Two-thirds  of  the  "  Counsellors"  were  to  make  a 
quorum,  and  they,  with  the  Executive,  were  to  have 
the  pardoning  power,  and  to  exercise  generally  the 
functions  of  administration. 

The  "  Counsellors"  and  the  Governor  also  were  to 
have  the  extraordinary  power  of  laying  embargoes. 


60  CONSTITUTIONAL   HISTORY. 

Justices  of  the  Peace  were  not  to  be  allowed  com- 
pensation, and  in  all  cases  salaries  were  to  be  "  as 
moderate  as  possible."  *  It  was  wisely  ordered  that 
no  receiver  of  public  moneys  should  be  eligible  to 
office  until  he  should  have  accounted  fully.  There 
was  a  provision  for  compelling  freemen  to  attend 
elections,  and  it  was  especially  ordered  that  no  one 
should  be  chosen  to  office  who  was  "  not  a  scholar 
to  do  the  business,  nor  unless  acquainted  with  the 
laws  of  the  country  in  some  measure,  but  particu- 
larly with  every  article  of  the  Constitution." 

In  the  twenty-fourth  Section  it  was  ordered  that: 
"  To  prevent  the  civil  power  usurping  spiritual 
supremacy,  the  establishing  of  professions,  denom- 
inations, or  sects  of  religion,  or  patronizing  ecclesi- 
astical hierarchies  and  dignitaries,  also  to  secure  re- 
ligious liberty  and  rights  of  conscience  forever  in- 
violate, every  citizen  of  this  Commonwealth  shall 
forever  have  full  and  free  liberty  to  join  himself  to 
any  society  of  Christians  he  may  judge  most  for  his 
edification,  and  shall  experience  no  civil  or  legal 
disadvantages  for  his  so  doing."  There  were  addi- 
tional provisions  securing  unlimited  liberty  of  opin- 

*  In  the  larger  cities,  at  the  present,  there  is  no  more  lucra- 
tive office  than  that  of  justice  of  the  peace,  and  the  promoting 
of  small  litigation  has  become  an  exact  science. 


FRANKLIN.  61 

ion,  but  it  might  be  difficult  to  maintain  the  propo- 
sition that  this  constitution  would  have  established 
freedom  of  religion,  as  one  condition  to  office-hold- 
ing was  a  perfect  orthodoxy.  A  citizen  might 
have  held  what  opinion  he  pleased,  but  he  would 
not  have  been  eligible  to  office  unless  his  beliefs 
had  conformed  to  the  dogmas  of  the  Church. 

Imprisonment  for  debt  was  authorized,  but  ex- 
cept in  cases  where  the  presumption  of  fraud  was 
great,  the  debtor  could  not  be  held  after  delivering 
his  estate  for  the  benefit  of  his  creditors. 

There  was  to  be  a  university  near  the  center  of 
the  State,  and  if  "experience  should  make  it  ap- 
pear to  be  useful  to  the  interests  of  learning,"  a 
grammar  school  conducted  by  masters  of  "  approved 
morals  and  abilities,"  and  supported  by  the  public, 
was  to  be  erected  in  each  county. . 

Freedom  of  the  press  was  established,  and  in  no 
case  were  printers  to  be  prosecuted,  provided  they 
would  disclose  the  authorship  of  the  offensive  pub- 
lication. 

The  Constitution  was  to  be  "  drawn  out  into  a 
familiar  catechetical  form,"  and  taught  in  all  the 
schools.* 


*  The  Constitution  of  1796  was  so  "drawn  out"  bv  Willie 


62  CONSTITUTIONAL    HISTORY. 

Every  free  inhabitant  of  the  State  was  entitled  to 
vote  after  reaching  the  age  of  twenty-one  years. 

The  popular  aversion  to  lawyers  was  manifest  in 
a  provision  for  arbitration  which  was  intended  to 
avoid  the  necessity  of  litigation.  It  is  probable 
that  a  more  effective  method  of  securing  discord 
and  of  making  lawyers  indispensable  never  was 
devised. 

The  entire  Constitution  has  not  been  preserved, 
but  we  have  forty-four  sections  complete,  and  the 
forty-fifth  in  part.  Probably  there  was  not  much 
more  of  it. 

That  part  of  the  forty-fifth  section  which  is  pre- 
served contains  one  of  the  empirical  provisions.  It 
ordained  that  in  every  fifth  year,  twenty-four  free- 
holders should  be  elected  as  a  "  Council  of  Safety  " 
who,  during  a  year  and  a  day  next  succeeding 
their  election,  should  have  full  power,  and  whose 
duty  it  should  be  to  inquire  whether  the  Constitu- 
tion had  been  preserved.*  The  remainder  of  the 
Constitution  has  been  lost,  the  word  "  preserved  "  be- 

Blount,  and  I  have  before  me  a  copy  of  his  work  which  was 
printed  at  Knoxville  by  Geo.  Roulstone  in  1803. 

*  It  will  be  noticed  that  Willie  Blount  wished  to  insert  a 
similar  provision  into  the  Constitution  of  1834. 


FRANKLIN.  63 

ing  the  last  word  in  that  part  which  has  been 
discovered. 

This  instrument  had  not  only  the  approval,  but 
also  the  ardent  support  of  many  influential  citizens. 
Its  importance  is  in  the  fact  that  in  part  at  least  it 
was  the  product  of  the  Franklin  people.  Mr. 
Houston  represented  a  numerous  and  strong  con- 
stituency, and  his  paper  may  be  examined  with 
profit,  as  an  expression  of  the  mind  of  that  con- 
stituency on  important  questions  of  politics,  of 
morals  and  of  religion. 

Among  other  things,  it  shows  beyond  question 
the  existence  of  a  more  highly  developed  and  or- 
ganized society  than  existed  in  Watauga  and  Cum- 
berland. It  indicates  a  large  increase  of  population, 
of  wealth  and  of  culture.  In  respect  of  religious 
freedom,  we  know  that  the  Cumberland  Compact 
was  silent,  and  infer  that  the  Watauga  Articles 
were  silent  also.  In  this  Houston  Constitution  we 
have  a  qualified  recognition  of  the  principle  in 
an  instrument  which  was  prepared  by  a  Presby- 
terian preacher. 

It  is  to  be  noted  that  while  property  qualification 
for  certain  offices  was  established,  suffrage  was  to 
be  universal. 

The  strict  moral  requirements  of  Scotch  Calvin- 


64  CONSTITUTIONAL   HISTORY. 

ism  appear  in  the  provisions  excluding  immoral 
men  from  office,  and  the  Scotch-Irish  devotion  to 
education  in  the  clauses  authorizing  the  University 
and  a  public  school  system.  The  instrument  in  its 
entirety  expresses  the  mind  of  the  more  cultured 
and  more  devout  component  of  the  population. 

In  all  its  essential  features  it  was  an  Anglo- 
American  Constitution,  with  certain  unwise  and 
purely  empirical  features  added. 

When  it  had  been  voted  down  by  a  very  small 
majority,  Sevier*  proposed  the  adoption  of  the 
North  Carolina  Constitution,  with  such  immaterial 
modifications  as  the  circumstances  required.  The 
proposition  was  carried  by  a  small  majority.  The 
effect  was  the  adoption  of  the  good  parts  of  the 
Houston  Constitution,  and  the  rejection  of  the  bad 
parts,  because,  as  I  have  already  stated,  Mr.  Hous- 
ton had  made  the  Carolina  Constitution  the  basis 
of  his  scheme.  That  Constitution  was,  for  that  time, 
a  thoroughly  democratic  and  American  version  of 
the  English  Constitution.  I  shall  discuss  it  in  con- 
nection with  the  Tennessee  Constitution  of  1796. 

While  the  State  was  struggling  with  the  Consti- 

*  Ramsey,  p.  324,  says  that  Sevier  proposed  it.     Haywood, 
p.  120,  says  that  William  Cocke  made  the  motion. 


FRANKLIN.  65 

tution,  the  Legislature  had  assembled  in  the  spring 
of  1785,  and  after  electing  Sevier  Governor  and  ap- 
pointing other  necessary  officers,  had  entered  upon 
a  vigorous  course  of  law  making.  One  of  its  first 
acts  was  "  for  the  promotion  of  learning  in  Wash- 
ington County."  Under  the  provisions  of  this  act, 
Martin  Academy,  which  had  been  chartered  by 
North  Carolina  in  1783,  appears  to  have  procured 
a  new  charter  from  Franklin  in  1785.*  This  was 
the  first  Legislative  act  west  of  the  Alleghanies  for 
the  encouragement  of  learning.! 

The  financial  system  which  was  established  by 
this  Legislature  is  both  entertaining  and  instructive. 
In  addition  to  the  ordinary  medium  of  exchange, 
divers  commodities  were  made  legal  tender.  Tow 
linen,  for  instance,  was  legal  tender  at  the  rate  of 
one  shilling  nine  pence  a  yard,  and  linsey  at  three 
shillings ;  clean  beaver  skins,  six  shillings  each ; 

*  Ramsey,  p.  294. 

t  About  the  year  1780,  Samuel  Doak,  who  became  President 
of  Martin  Academy,  had  established  a  private  school  in  Wash- 
ington County,  North  Carolina  (now  Tennessee),  which  is  as- 
serted to  have  been  the  first  literary  institution  in  the  Missis- 
sippi Valley.  Foote,  in  his  Sketches  of  North  Carolina,  says 
Martin  Academy  was  chartered  by  that  State  in  .1788,  and 
Phelan  follows  Foote. 


66  CONSTITUTIONAL   HISTORY. 

raccoon  and  fox  skins,  one  shilling  and  three  pence; 
bacon  and  tallow,  six  pence  a  pound ;  bees-wax, 
one  shilling  a  pound ;  rye  whisky,  two  shillings  and 
six  pence  a  gallon  ;  peach  and  apple  brandy,  three 
shillings  a  gallon ;  maple  sugar,  one  shilling  a 
pound.  Thus  the  Governor  might  have  been  com- 
pelled to  take, the  amount  of  his  salary  in  bees- wax 
and  rye  whisky.  There  is  a  tradition,  probably 
not  w^ell  founded,  that  he  was  always  paid  in  mink 
skins.  Dr.  Ramsey  was  very  much  distressed  on 
account  of  the  merriment  which  had  been  caused  by 
this  financial  legislation,  and  devoted  two  pages  to  an 
effort  to  show  that  Franklin  was  not  the  only  fron- 
tier government  that  had  resorted  to  such  measures. 
He  recites  the  fact  that  in  early  times  in  Virginia, 
the  price  of  a  wife  was  estimated  at  one  hundred 
and  fifty  pounds  of  tobacco  ;  that  in  North  Carolina, 
as  late  as  1722,  debts  were  paid  in  hides,  tallow  and 
furs  ;  that  in  Massachusetts,  corn  was  at  one  time 
legal  tender ;  that  later,  musket  balls  were  current 
at  a  farthing  apiece,  and  that,  in  1680,  a  New  En- 
gland town  paid  its  taxes  in  milk  pails. 

This  legislation  is  extremely  interesting  and  val- 
uable to  those  who  study  history  in  'conditions  and 
in  institutions  rather  than  in  events. 

When  the  separation  movement  began  it  was  sup- 


FRANKLIN.  67 

ported  almost  unanimously  by  the  people.  John 
Tipton,  who  became  Sevier's  bitter  and  relentless 
enemy,  was  an  ardent  advocate  of  the  movement 
at  that  time.  It  was  not  long,  however,  until  dis- 
affection began.  Quarrels  arising  out  of  the  vain 
efforts  to  agree  on  the  Constitution,  alienated  a 
number  of  influential  men.  We  have  seen  that 
when  the  Cession  Act  was  repealed,  Sevier  advised 
the  abandonment  of  the  movement.  His  position 
was  such,  however,  that  he  was  compelled  to  yield 
to  the  popular  clamor  and  to  accept  the  leadership 
which  was  tendered  him. 

Tipton  gave  his  adherence  to  the  old  State,  and 
as  early  as  the  year  1786  was  elected  a  member  of 
the  Senate  of  Forth  Carolina.  By  the  beginning 
of  the  year  1787,  a  majority  of  the  people  had  sub- 
mitted to  the  authority  of  Forth  Carolina,  and 
that  State  was  exercising  jurisdiction  over  all  the 
Franklin  Counties  except  Sevier  and  Caswell,  both 
of  these  being  new  counties  created  by  Franklin. 
In  the  original  counties  North  Carolina  already  had 
exclusive  control. 

The  existence  of  two  rival  governments  in  the 
same  territory  produced  disastrous  though  some- 
times ludicrous  results. 

Affairs  continued  to  be  confused  and  disordered 


68  CONSTITUTIONAL   HISTORY. 

until  about  the  middle  of  the  year  1788.  Sevier's 
term  of  office  expired  on  the  first  of  March,  1788, 
and  the  last  Legislature  of  Franklin  met  in  Sep- 
tember, 1787.  In  1787,  all  the  Counties  that  had 
been  created  by  North  Carolina  elected  representa- 
tives to  the  Legislature  of  that  State.  Sevier  was 
now  advised  by  his  friends  to  submit,  but  his  pride 
rebelled  at  the  thought  of  surrendering  to  the  party 
led  by  his  implacable  enemy,  John  Tipton,  and  so 
for  awhile  he  maintained  a  show  of  resistance.  He 
had  been  outlawed,  and  daring  his  absence  upon 
an  expedition  against  the  Indians,  the  North  Car- 
olina Sheriff  went  to  his  home  and  seized  his 
slaves  under  execution.  Sevier  in  turn  besieged 
Tipton's  house;  the  proceeding,  however,  was 
much  more  a  farce  than  a  tragedy,  and  ended  in 
failure.  Not  long  after  this,  Sevier  was  arrested  on 
the  charge  of  treason  and  carried  to  North  Caro- 
lina for  trial.  He  made  his  escape,  returned  home, 
and  being  elected  a  little  later  to  the  State  Legis- 
lature, his  disability  was  promptly  removed. 

I  have  outlined  the  career  of  Sevier  and  the  clos- 
ing years  of  Franklin  for  the  purpose  of  showing 
what  were  the  social  conditions  of  that  period. 

The  later  history  of  Franklin  is  wanting  in  dig- 
nity and  in  attractiveness.  The  disturbed  condition 


FRANKLIN.  69 

of  society  was  disastrous  to  the  growth  of  the  coun- 
try in  population  and  in  wealth.  Nevertheless  the 
westward  march  of  the  white  man  was  not  discon- 
tinued. Middle  Tennessee  doubtless  profited  largely 
by  the  Franklin  disturbances,  arid  East  Tennessee 
lost  correspondingly.  But  while  affairs  were  un- 
settled, there  was  comparatively  little  violence  and 
almost  no  bloodshed.  The  people  realized  that  the 
division  was  only  temporary,  and  the  asperities  of 
partisanship  were  tempered  by  mutual  forbearance 
and  by  the  inherent  love  of  the  people  for  law 
and  order. 

The  fact  that  so  little  violence  resulted  from  con- 
ditions the  best  calculated  to  produce  it,  is  highly 
creditable  to  the  men  of  Franklin  of  both  factions. 

I  can  not  forbear  mention  of  the  subject  which 
Mr.  Roosevelt  treats  at  length  under  the  name  of 
separatism.  I  think  that  he  reaches  the  right  con- 
clusion, but  magnifies  the  few  scheming  politicians 
and  speculators,  who,  for  selfish  reasons,  encouraged 
the  Spanish  leaders  to  hope  for  the  accession  of  the 
western  settlements,  and  who  might  have  been  will- 
ing to  carry  their  intrigues  to  the  point  of  a  tem- 
porary alliance  with  Spain.  He  proves  that  Sevier 
and  Robertson  and  other  Tennessee  and  Kentucky 
leaders  were  in  correspondence  with  Gardoqui, 


70  CONSTITUTIONAL   HISTORY. 

Miro  and  other  Spanish  officials,  but  I  find  nothing 
to  justify  the  belief  that  even  the  leaders  of  the 
Americans,  in  Tennessee  at  least,  desired  or  con- 
templated the  absorption  of  the  settlements  by 
Spain,  or  the  establishment  of  organic  union  with 
that  power. 

The  race  antipathy  was  strong,  and  the  American 
leaders  could  hardly  have  been  deluded  so  far  as  to 
think  that  the  settlers  would  follow  them  over  to 
Spain. 

There  was  no  friendship  between  North  Carolina 
and  the  Tennessee  counties,  but  the  western  people 
neglected  no  opportunity  to  avow  their  devotion  to 
the  general  government.  There  was  no  conception 
of  the  great  Union  of  States  which  was  soon  to 
possq^  the  temperate  zone  of  the  Continent ;  at 
least  this  was  true  of  the  frontiersmen,  but  there 
was  a  deep-rooted,  ineradicable  love  of  liberty,  and 
the  least  intelligent  of  the  backwoodsmen  knew 
that  Spain  was  the  most  despotic  and  bigoted  of  the 
European  powers.  I  can  not  believe  that  the  com- 
mon people  as  a  rule  ever  considered,  much  less  de- 
sired, even  a  temporary  connection  with  Spain.  Mr. 
Roosevelt  clearly  is  right  in  thinking  that  Sevier, 
even  when  he  had  become  the  outlawed  and  des- 
perate leader  of  a  ruined  cause,  never  intended  to 


FRANKLIN.  71 

do  more  than  to  ally  himself  temporarily  with  the 
Spaniard  in  order  to  escape  the  penalty  of  treason 
to  North  Carolina.  Some  of  the  Kentucky  leaders 
were  men  of  a  baser  sort,  but  I  do  not  believe  that 
the  people  ever  approved  their  purposes.  The  sep- 
aratist leaders  were  not  representative,  and  the  peo- 
ple can  not  justly  be  judged  by  the  conduct  of  a 
handful  of  unprincipled  adventurers.  Confining 
myself  to  the  Franklin  people,  I  can  not  concede 
that  there  was  the  slightest  possibility  of  carrying 
them  over  to  any  foreign  power.  The  desertion 
from  Franklin  began  immediately  upon  the  repeal 
of  the  Cession  Act,  and  Sevier's  correspondence 
with  Gardoqui  occurred  at  the  downfall  of  Frank- 
lin, as  a  desperate  personal  effort  made  necessary  by 
the  reunion  of  the  two  portions  of  North  Cajg^ina. 
Franklin  did  not  separate  from  North  Carolina, 
but  established  a  government  to  protect  herself  be- 
cause she  thought  it  necessary.  If  some  of  the 
people  adhered  to  the  movement  after  it  had  ceased 
even  to  appear  to  be  necessary,  their  number  con- 
stantly decreased  until  the  reunion  was  complete. 
If  by  the  "  separatist  "  spirit,  Mr.  Roosevelt  means 
the  desire  of  the  people  to  establish  new  States  upon 
the  same  footing  as  the  old,  he  is  right  in  saying 
that  there  was  such  a  feeling,  for  this  was  the 


72  CONSTITUTIONAL   HISTORY. 

earnest  and  proper  wish  of  the  people  of  Tennessee 
and  of  Kentucky,  but  it  is  submitted  that  there  is 
no  warrant  for  believing  that  the  people  ever  de- 
sired to  break  away  from  their  own  race  and  join 
themselves  to  the  Spaniard.  If  we  consider  the 
conduct  of  Robertson,  we  find  him  corresponding 
with  the  Spanish  officials  with  the  hope  of  opening 
the  Mississippi,  but  so  little  of  a  separatist  was  be 
that  he  would  not  aid  nor  even  countenance  Frank- 
lin, but  was  a  member  of  the  Carolina  Legislature 
while  Sevier  was  an  insurrectionary  leader. 


CHARLES  McCLUNG, 

Of  Convention  of  179C. 


THE   CONSTITUTION   OF   1796.  73 


CHAPTER  IV. 

THE  CONSTITUTION  OF  1796. 
1796-1834. 

I  have  described  in  general  terms  the  methods 
of  local  government  in  New  England  and  in  the 
Southern  Colonies.  In  considering  the  organiza- 
tion of  the  State  of  Tennessee  it  becomes  neces- 
sary to  revert  to  the  subject. 

John  Fiske  says  truly  that  the  political  life  of 
Virginia  was  built  up  out  of  the  political  life  of 
the  Counties ;  and  with  equal  justice  this  may  be 
said  of  North  Carolina  and  of  Tennessee. 

The  County  is  a  modern  English  institution.  It 
is  the  successor  of  the  Shire.  Among  the  German 
peoples  who  conquered  Britain,  as  among  those 
who  remained  upon  the  continent,  a  division  into 
tribes  -was  common.  The  tribes  were  in  turn  di- 
vided into  Clans,  and  the  Clan,  when  it  became 
sedentary,  took  a  certain  territory,  which  was  held 
in  common  by  its  members,  and  in  the  midst  of 
which  the  Clan  village  or  "tun"  was  located. 
The  village  had  the  largest  liberty  of  self-govern- 


74  CONSTITUTIONAL   HISTORY. 

ment,  and  it  is  the  ancestor  of  the  modern  Town- 
ship and  the  original  Teutonic  unit  of  government. 
Its  local  laws  were  made  at  town  meetings.  This 
system  antedates  the  appearance  of  the  Germans 
in  history  by  many  centuries,  and  is  by  far  the 
best  as  well  as  the  oldest  scheme  of  local  govern- 
ment that  has  been  devised. 

Above  the  Clan  was  the  tribal  or  Shire  govern- 
ment. The  governing  body  of  the  Shire  was  the 
Shire  mote  or  meeting,  including  in  Christian  times 
the  lords  of  the  land,  ecclesiastical  and  temporal, 
and  the  reeve  or  head-man  and  four  select  men 
from  each  Township,  and  this  body  made  laws  for 
the  Shire  and  tried  suits  at  law,  both  civil  and 
criminal. 

These  were  the  original  Anglo-Saxon  institu- 
tions. After  the  Norman  conquest  in  the  eleventh 
century,  the  Township  practically  disappears  from 
English  history,  though  most  of  its  characteristics 
survive  in  the  institutions  called  the  Parish,  and 
the  Manor. 

The  lands  of  England  were  nearly  all  apportioned 
among  the  Norman  conquerors,  and  local  govern- 
ment became  less  popular  and  more  personal.  The 
Shire  succeeds  the  Township  as  the  unit  of  govern- 
ment, but  under  its  new  name  and  with  many  modi- 


THE    CONSTITUTION  OF   1796.  75 

fications.  For  a  time  the  name  Shire  almost  dis- 
appears and  is  succeeded  by  "  County,"  a  French 
word  indicating  a  district  such  as  was  usually 
presided  over  by  a  Count.  Thus  we  find  the 
Township  and  the  County  springing  from  a  com- 
mon stock,  both  being  thoroughly  English.  The 
Township,  however,  falls  into  disuse  until  it  is 
revived  in  New  England,  while  the  County  is  es- 
tablished in  England  and  passes  over  to  all  the 
Southern  Colonies  of  America.  The  reasons  for 
this  I  have  heretofore  indicated. 

After  the  Norman  Conquest  the  Shire  mote  be- 
came the  County  Court.  Its  legislative  powers 
were  gradually  restricted  until  the  county  became 
little  more  than  an  administrative  district.  Cases 
were  no  longer  tried  by  the  County  Courts  as  inde- 
pendent tribunals,  but  the  king  appointed  Circuit 
Judges  to  preside  over  them.  The  people  had 
formerly  elected  the  Sheriff  or  Shire  reeve  for  life, 
but  now  the  king  appointed  him  for  one  year.  In 
the  reign  of  King  Edward  III,  a  new  functionary 
is  developed,  to  wit,  the  Justice  of  the  Peace.  Of 
these  there  were  six,  at  first,  in  each  county,  but 
later  they  were  multiplied  at  the  royal  pleasure. 
In  the  year  1632,  the  justices  were  first  required  to 
hold  court  four  times  a  year.  This  court  was 


76  CONSTITUTIONAL   HISTORY. 

called  the  Quarter  Sessions,  and  its  lineal  descend- 
ants now  sit  four  times  a  year  in  every  County  of 
Tennessee.* 

The  English  County  system  comes  to  Tennessee 
directly  by  an  unbroken  line  of  descent,  through 
North  Carolina,  but  the  time  has  come  when  many 
citizens  wish  earnestly  to  see  it  modified  by  the 
restoration  of  the  old  Township  system  which  our 
German  forefathers  established  before  they  passed 
under  the  dominion  of  feudal  lords,  and  which 
experience  conclusively  proves  to  be  the  best 
adapted  to  the  local  government  of  a  free  people. 

Local  government  in  North  Carolina  seems  to 
have  begun  with  the  famous  and  impossible  "  Fun- 
damental Constitutions  "  which  were  conceived  by 
the  great  empirical  philosopher,  John  Locke,  and 
which  formulated  probably  the  worst  scheme  of 
government  that  ever  was  committed  to  writing.  It 
was  a  most  unhappy  union  of  diverse  and  incom- 
patible principles  and  plans,  and  so  elaborate  and 
complicated  was  it,  that  while  it  had  a  nominal  ex- 
istence of  twenty  years,  no  degree  of  energy  nor  of 
ingenuity  could  get  it  all  into  operation  at  one 
time.  The  one  important  survival  from  it  was  the 


*In  treating  early  English  institutions  I  have  mainly  fol- 
lowed Fiske,  who  is  always  accurate. 


THE   CONSTITUTION   OF   1796.  77 

Precinct,  which  was  a  sort  of  a  substitute  for  the 
County  and  was  the  original  unit  .of  government  in 
North  Carolina.  There  were  four  Precincts  at  first, 
but  the  number  grew  to  fourteen. 

In  1729  the  Proprietors  who  held  the  Province 
under  the  royal  charter  of  1663,  ceded  it  to  the 
crown,  and  in  1738  the  Precincts  were  first  called 
Counties. 

Justices  of  the  Peace  were  appointed  in  the  be- 
ginning by  the  Governor,  but  later  his  council  had 
a  voice  in  selecting  them.  When  the  Crown  be- 
came the  proprietor  of  the  Province,  the  County 
government  seems  to  have  been  conformed  as  nearly 
as  possible  to  the  English  original. 

The  Judiciary  of  the  Province  as  originally  or- 
ganized, consisted  of  a  General  Law  Court  of  eight 
members,  one  of  whom  was  Chief  Justice,  who  was 
appointed  by  the  Lords  Proprietors  jointly,  while 
each  of  the  remaining  Justices  represented  one  of  the 
Proprietors  individually.  Afterwards  the  number  of 
Judges  was  reduced  to  three,  a  Chief  Justice  being 
appointed  by  the  Proprietors,  and  the  two  Asso- 
sociates  by  the  Governor  and  the  Council.  There 
was  also  an  Attorney-General,  who  was  appointed 
by  the  Governor  and  the  Council.  The  jurisdiction 
of  the  General  Law  Court  extended  over  the  entire 


78  CONSTITUTIONAL   HISTORY. 

Province.  It  had  original,  as  well  as  appellate 
jurisdiction.  There  was  a  Chancery  Court,  consist- 
ing of  the  Governor  and  the  Councilors,  whose 
procedure  was  that  of  the  English  Courts  of  Chan- 
cery. There  was  also  a  court  of  original  and  gen- 
eral criminal  jurisdiction,  called  the  Court  of  Oyer 
and  Terminer,  in  which  cases  were  brought  by  in- 
dictment and  upon  information  of  the  Attorney- 
General.  In  course  of  time  a  Circuit  Court  was 
established,  to  which  was  transferred  the  entire 
original  jurisdiction  of  the  General  Law  Court  in 
civil  cases.  We  thus  have  in  substance  our  present 
Tennessee  system. 

Subsequently,  there  were  various  changes  of  form 
which  I  have  not  space  to  mention.  The  system 
thus  briefly  outlined  was  retained  in  all  essential 
respects  by  the  State  of  North  Carolina  and  by 
Tennessee. 

The  chief  executive  officer  of  the  Province  was 
the  Governor,  with  whom  was  associated  a  council 
composed  at  first  of  twelve,  but  afterwards  of 
six  members. 

The  Assembly  consisted  at  first  of  one  body,  but 
when  the  number  of  Councilors  was  reduced  to 
six,  the  Governor  and  the  Councilors  became  the 
upper  house  of  the  Assembly.  The  lower  branch 


CONSTITUTION   OF   1796.  79 

was  called  the  House  of  Burgesses,  two  members 
being  elected  from  each  county,  and  one  from  each 
of  the  six  larger  towns.  The  meetings  of  the  Legis- 
lature were  biennial. 

In  the  year  1701  the  English  Church  establish- 
ment was  extended  over  the  Province  of  North 
Carolina,  where  it  nominally  existed  till  the  Revo- 
lution. It  is  needless  to  say  that,  while  by  opera- 
tion of  law  it  extended  over  the  territory  of  Ten- 
nessee, there  was  never  in  fact  any  established 
church  West  of  the  Alleghanies. 

Another  interesting  and  important  fact  is,  that 
at  least  twice  before  Tennessee  became  a  ter- 
ritory, the  entire  body  of  the  English  common 
law,  so  far  as  applicable,  was  re-enacted  as  the  law 
of  North  Carolina.* 

I  have  gone  into  these  details  in  order  to  establish 
the  correctness  of  the  statement,  that  the  institutions 
of  Tennessee  are  of  purely  English  origin.  There 
is  nothing  in  Tennessee,  considered  as  a  political 
organization,  which  is  not  traceable  directly  to  En- 
gland. Upon  the  subject  of  local  government  I 
wish  to  emphasize  the  declaration  which  I  make 
above  in  favor  of  the  Township  system.  The 

*  The  common  law  as  thus  enacted  by  North  Carolina  is 
still  in  force  in  Tennessee,  except  where  modified  by  statute. 


80  CONSTITUTIONAL   HISTORY. 

County  plan  comes  to  us  from  feudal  England, 
the  Township  from  Saxon  England.  The  Town- 
ship is  the  natural  unit  in  Teutonic  institutions. 
It  was  the  form  which  the  independent  and  com- 
pact societies  of  New  England  naturally  assumed. 
I  have  no  hesitancy  in  asserting  that  in  the  history 
of  this  country  the  Township  has  produced  the 
better  results.  A  discussion  of  the  question  is  be- 
yond the  scope  of  this  volume,  but  I  should  feel 
amply  repaid  for  the  work  I  am  doing  if  I  could 
direct  public  attention  to  the  subject.  If  Tennessee 
should  have  another  Constitutional  Convention, 
there  will  be  a  strong  sentiment  in  favor  of  grafting 
the  Township  upon  our  polity,  especially  for  the 
benefit  of  cities,  whose  local  needs  are  frequently  at 
variance  with  those  of  the  Counties  to  which  they 
belong,  and  whose  proper  development  indisputably 
requires  an  enlarged  right  of  self-government. 
Thomas  Jefferson  said:  "Those  wards  called 
Townships  in  New  England,  are  the  vital  principle 
of  their  governments,  and  have  proved  themselves 
the  wisest  invention  ever  devised  by  the  wit  of  man 
for  the  perfect  exercise  of  self-government  and  for 
its  preservation."  * 

*  Jefferson  Works,  Vol.  7,  p.  13, 


CONSTITUTION   OF   1796.  81 

John  Fiske,  who  quotes  this  saying,  expresses 
his  own  opinion  of  the  Township  system  as  fol- 
lows :  "  It  is  the  most  perfect  exhibition  of  what 
President  Lincoln  called,  '  government  of  the  peo- 
ple, by  the  people,  and  for  the  people.'  "  * 

The  Township  and  the  County  may  and  should 
exist  together  without  friction  and  without  im- 
pairment of  any  essential  function  of  either  organi- 
zation. 

But  to  return  from  this  digression. 

Phelan,  whose  History  of  Tennessee  is  composed 
in  a  philosophic  spirit,  although  he  appears  at 
times  to  force  the  facts  to  fit  his  theory,  declares 
that :  "  If  we  examine  the  Constitution  (of  North 
Carolina)  of  1776,  we  shall  find  that  it  has  in- 
troduced absolutely  not  a  single  feature  into 
North  Carolina  with  which  we  are  not  already 
familiar."  f  This  Constitution  became,  with  a  few 
modifications,  the  Constitution  of  Tennessee,  twenty 
years  later.  It  provided  for  a  Governor,  and  for  a 
General  Assembly  composed  of  a  Senate  and  a 
House  of  Commons.  Each  County  had  a  Senator, 
and  two  members  of  the  House  of  Commons,  and 
the  six  largest  towns  in  the  State  had  each  a  mem- 


*  Civil  Government,  p.  32. 

t  History  of  Tennessee,  p.  196. 


82  CONSTITUTIONAL     HISTORY. 

ber  of  the  Lower  House.     This  last  was  a  survival 
from  the  English  borough  system. 

.The  Houses  elected  their  own  officers  and  were 
judges  of  the  qualification  and  election  of  their 
members.  Judges  were  chosen  by  joint  ballot  of 
the  two  Houses,  to  hold  office  during  good  behavior. 
The  Governor  also  was  elected  by  the  Legislature 
at  its  first  meeting  after  each  annual  election.  No 
one  was  eligible  to  the  office  of  Governor  who  was 
not  thirty  years  of  age  or  who  did  not  own  a  free- 
hold in  land  above  a  thousand  pounds  in  value. 
The  Assembly  also  elected  a  council  of  seven  men 
who  were  to  be  advisers  of  the  Governor,  and 
whose  advice  was  expected  to  be  so  valuable  that 
it  was  to  be  recorded  in  a  book.  Members  of  the 
Assembly  were  required  to  own  two  hundred  acres 
of  land  in  fee  or  for  life,  and  the  suffrage  was  lim- 
ited to  holders  of  fifty  acres  and  upwards. 

In  these  provisions  will  be  observed  a  cautious 
adherence  to  English  precedents  and  a  reluctance 
to  enlarge  the  powers  of  the  common  people. 

On  the  25th  of  February,  1790,  North  Carolina 
by  formal  deed  conveyed  the  territory  of  Tennessee 
to  the  United  States,  and  on  the  second  of  April 
following,  Congress  accepted  the  deed.  In  May, 
1790,  an  act  was  passed  for  the  "  Government  of 
the  Territory  of  the  United  States  South  of  the 


THE    CONSTITUTION   OF    1796.  83 

River  Ohio."  *  A  Governor  and  three  judges  were 
to  be  appointed,  and  until  the  territory  should 
contain  five  thousand  voters,  these  were  to  ex- 
ercise all  the  functions  of  government.  The  first 
Territorial  Assembly  met  at  Knoxville,  August 
25,  1794.  It  was  composed  of  a  House  elected 
by  the  people,  the  basis  of  representation  being 
five  hundred,  and  of  a  Legislative  Council  of 
five,  which  corresponded  in  a  general  way  to 
the  modern  Senate.  The  members  of  the  Council 
were  nominated  by  the  representatives  and  commis- 
sioned by  the  President  of  the  United  States.  They 
were  Griffith  Rutherford,  John  Sevier,  James  Win- 
chester, Stockley  Donelson  and  Parmenas  Taylor. 
Among  the  members  of  the  Lower  House  were 
James  White,  William  Cocke,  Joseph  McMinn,  and 
John  Tipton. 

The  territorial  organization  was  entirely  artificial, 
and  is  of  little  importance  in  the  institutional  de- 
velopment of  Tennessee. 

William  Blount,  the  Governor,  is  in  many  re- 
spects an  interesting  personage.  He  is  unique  in 
Tennessee  history.  He  was  of  prominent  family, 
the  friend  of  Washington,  and  our  historians  de- 
light to  pay  tribute,  not  only  to  his  virtues,  but 

*  The  government  was  to  be  similar  to  that  of  the  Territory 
North  of  the  Ohio. 


84  CONSTITUTIONAL   HISTORY. 

more  especially  to  his  accomplishments.  By  his 
exalted  lineage  and  fine  manners,  by  his  unfailing 
and  judicious  urbanity,  and  his  lavish  hospitality, 
he  impressed  and  attracted  the  frontiersmen,  while 
his  lofty  demeanor  and  splendid  uniforms  dazzled 
the  Indians.  His  wife,  a  most  gracious  and  accom- 
plished lady,  contributed  greatly  to  his  popularity. 
He  was  our  one,  avowed  aristocrat  of  early  days,  and 
naturally  we  regard  him  with  affectionate  pride. 

He  was  a  man  of  more  than  ordinary  ability  and 
character,  and  his  sagacity  is  to  be  impeached  only 
on  account  of  the  injudicious  letter  which  cost 
him  his  place  in  the  United  States  Senate,  though 
it  did  not  deprive  him  of  the  confidence  nor  the 
affection  of  his  people.  History  has  dealt  with  him 
very  tenderly. 

Apparently  he  was  a  leader  in  the  movement  to 
establish  the  State  of  Tennessee;  in  fact  he  was 
wisely  obedient  to  an  irresistible  public  sentiment. 

On  the  llth  of  July,  1795,  the  Territorial  Assem- 
bly passed  an  act  for  the  enumeration  of  the  inhab- 
itants of  the  Territory.  The  eighth  section  of  this 
act,  following  the  act  of  Congress,  creating  the  Ter- 
itory,  provided  that  if  the  census  should  show  a 
population  of  over  60,000,  the  Governor  should  call 
a  convention,  to  prepare  a  Constitution  for  a  State 
government. 


THE    CONSTITUTION   OF   1796.  85 

The  enumeration  indicated  a  population  of  77,- 
262,  of  whom  10,613  were  slaves,  and  973  were 
distinguished  from  the  whites  as  "  other  free  per- 
sons." East  Tennessee  was  favorable  to  the  estab- 
lishment of  the  State,  but  Middle  Tennessee  voted 
strongly  against  it.  Davidson  County  voted  96  for 
and  517  against  the  State,  and  more  than  a  third 
of  all  the  voters  of  the  Territory  opposed  it. 

The  Convention,  composed  of  five  members  from 
each  county,  was  called  and  assembled  at  Knox- 
ville  on  the  eleventh  of  January,  1796.  There 
were  eleven  counties,  Blount,  Davidson,  Greene, 
Hawkins,  Jefferson,  Knox,  Sullivan,  Sevier,  Sum- 
ner,  Tennessee  and  Washington,  and  consequently 
fifty-five  members  of  the  Convention.  The  names 
of  members  who  are  best  known,  are,  Andrew 
Jackson,  John  McNairy,  James  Robertson,  Thomas 
Hardeman,  Joel  Lewis,  Joseph  McMiiin,  William 
Cocke,  Joseph  Anderson,  Archibald  Roane,  Will- 
iam Blount,  James  White,  Charles  McClung,  W. 
C.  C.  Claiborne,  John  Rhea,  Landon  Carter,  John 
Tipton  and  David  Shelby. 

On  the  motion  of  James  White  the  Convention 
was  opened,  not  only  with  prayer,  but  also  with  a 
sermon  by  the  Rev.  Samuel  Carrick.  Wm.  Blount 
was  elected  President,  and  Wm.  Maclin,  Secretary. 

The  first  resolution  of  the  Convention  after  the 


86  CONSTITUTIONAL    HISTORY. 

adoption  of  the  rules  was  as  follows  :  "  That  econ- 
omy is  an  amiable  trait  in  any  government,  and 
that  in  fixing  the  salaries  of  the  officers  thereof,  the 
situation  and  resources  of  the  country  should  be 
attended  to." 

It  is  an  indisputable  fact  that  this  "  amiable 
trait"  has  continuously  been  conspicuous  in  the 
history  of  Tennessee. 

The  first  important  action  was  the  appointment 
of  a  committee  of  twenty  to  draft  the  Constitution. 
This  committee  was  composed  of  Andrew  Jackson, 
John  McNairy,  Samuel  Frazier,  William  Rankin, 
William  Cocke,  Thomas  Henderson,  Joseph  Ander- 
son, James  Eoddye,  William  Blount,  Charles  Mc- 
Clung,  W.  C.  C.  Claiborne,  John  Rhea,  David 
Shelby,  Daniel  Smith,  Samuel  Wear,  John  Clack, 
Thomas  Johnston,  William  Fort,  John  Tipton  and 
James  Stewart.  It  is  a  part  of  the  history  of  the 
Convention,  not  heretofore  written  but  believed  to 
be  authentic,  that  the  original  draft  of  the  Consti- 
tution was  made  by  Charles  McClung  whose  por- 
trait appears  at  the  head  of  this  chapter,  and  who 
was  the  founder  of  one  of  the  most  prominent  and 
influential  families  of  the  State. 

It  is  an  interesting  and  pleasing  fact  that  the 
members  of  the  Convention  being  allowed  compen- 
sation at  the  rate  of  two  dollars  and  fifty  cents  a 


THE   CONSTITUTION   OF   1796.  87 

day,  agreed  to  accept  only  one  dollar  and  fifty 
cents,  and  at  the  same  time  made  a  corresponding 
reduction  of  their  mileage. 

The  Constitution  of  1796  was  the  organic  law  of 
a  society  composed  of  sixty-six  thousand  white 
persons  who  were  mainly  of  English,  Scotch  and 
Irish  origin,  of  ten  thousand  slaves  and  of  a 
thousand  free  negroes.  The  white  people  as  a 
rule  came  from  the  middle  and  the  lower  orders 
of  society,  but  there  were  comparatively  few 
who  were  not  of  respectable  antecedents  and 
good  character.  The  Carters  had  been  promi- 
nent in  Virginia,  and  the  Blounts  in  North  Car- 
olina, while  the  McClungs,  Whites,  and  other 
Scotch-Irish  families  were  of  the  educated  and 
leading  class  of  that  race.  Charles  McClung  had 
been  a  civil  engineer,  James  White  had  a  fair  edu- 
cation, Iloane  was  a  man  of  erudition,  McNairy 
was  a  learned  lawyer  and  judge,  and  Cocke  was  a 
brilliant  orator ;  but  the  people  as  a  rule  were  as 
plain  and  unpretending  as  they  were  independent, 
honest  and  patriotic. 

We  have  found  from  the  legislation  of  the  State 
of  Franklin,  that  there  was  a  strong  sense  of  the 
necessity  and  of  the  benefits  of  education,  and  we 
know  that  wherever  the  Scotch-Irish  went  they 
carried  their  preachers,  who  almost  invariably  com- 


88  CONSTITUTIONAL   HISTORY. 

bined  the  business  of  school  teaching  with  their 
sacred  vocation.  We  trace  the  line  of  their  South- 
ward and  Westward  progress  by  a  cordon  of  col- 
leges and  academies.  The  names  of  Doak,  Carrick, 
Balch  and  Craighead  survive  to  us,  mainly  because 
they  were  pioneers  of  education.  The  State  Uni- 
versity owes  its  existence  to  the  Legislature  of  the 
Territory. 

There  was  little  wealth  among  the  people  despite 
the  picturesque  account  which  Haywood  gives  of 
the  acquisitiveness  and  the  luxuriousness  of  the 
Scotch  merchants.  William  Blount's  weather- 
boarded  log  house  at  Knoxville  was  esteemed  a 
monument  of  wealth  and  of  luxury.  The  Middle 
Tennessee  people  have  somewhat  complacently 
claimed  that  the  two-horse  men  stopped  in  East 
Tennessee,  while  the  four-horse  men  went  on  to 
Middle  Tennessee.  But,  conceding  this  to  be  true, 
the  four-horse  men  were  not  necessarily  opulent. 
The  fact  is  that  while  there  was  little  abject  pov- 
erty, there  was  a  great  scarcity  of  ready  money. 
Land  was  abundant  and  cheap,  and  the  establish- 
ment of  a  property  qualification  upon  a  land  basis, 
for  voting  and  office  holding,  indicates  that  the 
people  generally  were  freeholders.  The  financial 
condition  had  improved  since  the  days  of  Franklin, 
and  the  presence  of  slaves  shows  some  accumula- 


THE   CONSTITUTION   OF   1796.  89 

tion  of  property,  bat  the  available  resources  of  the 
State  were  very  limited.  It  is  recorded  that  it  be- 
gan its  career  with  less  than  four  thousand  dollars 
in  the  treasury. 

The  population  was,  politically,  homogeneous; 
there  was  little  inequality  of  individual  conditions, 
and,  therefore,  under  any  circumstances,  there  prob- 
ably would  have  been  no  serious  difficulty  in  fram- 
ing a  satisfactory  Constitution.  The  accomplish- 
ment of  that  result  was  made  easier  by  the  fact  that 
there  was  at  hand  an  instrument  under  which  the 
people  had  been  living  for  many  years.  Franklin 
had  virtually  adopted  the  Carolina  Constitution, 
and  Tennessee  wisely  took  the  same  course. 

The  North  Carolina  Constitution,  while  thor- 
oughly democractic  in  its  proclamation  of  princi- 
ples, was  essentially  conservative  in  method.  The 
same  spirit  is  manifest,  though  in  less  degree,  in  the 
Tennessee  Constitution.  The  advanced  principles 
of  American  liberty  appear  in  general  declarations 
in  the  Bill  of  Rights  and  elsewhere,  but  many  mod- 
ifications of  English  institutions  which  were  the 
logical,  and  ultimately  the  necessary,  results  of  the 
assertion  of  those  principles  were  not  made. 

Monarchy  and  aristocracy  were  absolutely  repu- 
diated, of  course,  and  in  every  respect  the  people 


90  CONSTITUTIONAL    HISTORY. 

were  thoroughly  democratic  in  sentiment,  but  they 
had  not  the  experience  nor  the  confidence  in  them- 
selves to  give  adequate  form  and  expression  to 
their  principles.  The  common  people  were  not  fully 
prepared  to  assert  themselves.  The  same  cautious 
adherence  to  English  precedents  in  state-making 
was  naturally  exhibited  every-where  in  America. 
The  electoral  college  is,  in  one  sense,  an  embodi- 
ment of  the  distrust  of  the  people  which  was  felt 
by  the  National  Convention,  and  generally  by 
American  leaders  of  that  age.  The  requirement 
of  the  Carolina  Constitution  that  the  Governor 
should  own  a  thousand  pounds'  worth  of  land,  and 
other  kindred  provisions,  show  an  utter  failure  to 
comprehend  the  great  part  which,  from  the  very 
nature  of  our  institutions,  was  to  come  to  the  com- 
mon people  in  the  affairs  of  this  country. 

The  Tennessee  Constitution  exhibits  a  slow  and 
almost  timid  process  of  evolution.  This  conserv- 
atism, if  it  appears  to  us  now  to  have  been  ex- 
cessive, was  natural,  and  may  have  been  wise. 
Earlier  or  more  radical  changes  could  hardly  have 
produced  better  results  than  have  followed. 

The  first  place  in  the  Constitution  is  given  to 
the  Legislature,  and  one  principal  defect  of  the  in- 
strument is  the  reservation  of  too  much  power  to 


THE   CONSTITUTION   OF   1796.  91 

that  department.  The  General  Assembly  was  com- 
posed of  two  houses,  the  Senate  and  the  House  of 
Representatives.  The  English  name,  House  of 
Commons,  which  North  Carolina  had  retained,  was 
discarded,  as  was  the  borough  representation.  The 
Tennessee  Constitution  provided  for  one  Senator 
and  two  Representatives  from  each  County  in  the 
first  Assembly.  These  were  distinctively  American 
changes.  After  the  census  which  was  to  be  taken 
within  three  years  of  the  first  meeting  of  As- 
sembly, Senators  and  Representatives  were  to  be 
apportioned  according  to  the  number  of  taxable  in- 
habitants, and  not  according  to  population.  Here 
we  see  the  persistence  of  the  sentiment  in  favor  ot 
property  rights. 

No  one  could  be  a  member  of  the  Assembly  who 
had  not  for  one  year  possessed  and  continued  to 
possess  two  hundred  acres  of  land.  In  this  the 
North  Carolina  rule  was  retained. 

The  Legislature  was  to  fix  all  salaries,  but  till 
the  year  1804  the  following  were  paid:  To  the 
Governor,  $750;  to  the  Judges,  not  more  than 
$600;  to  the  Secretary,  not  more  than  $400;  to  the 
Treasurer  or  Treasurers,  not  more  than  four  per 
cent  for  receiving  and  paying  out  all  moneys;  and 


92  CONSTITUTIONAL   HISTORY. 

to  the  Attorney  or  Attorneys,  not  more  than  fifty 
dollars  for  each  Court  attended. 

~No  collector  of  public  moneys  was  allowed  a 
seat  in  the  Assembly  until  he  had  satisfactorily  ac- 
counted— a  wise  provision,  which  still  holds  its 
place  in  our  Constitution.  It  was  taken  from 
North  Carolina. 

The  revenue  clauses  are  unique,  artificial,  and 
difficult  to  understand.  Land  was  the  chief  source 
of  revenue,  and  it  was  to  be  taxed  equally  and  uni- 
formly.* No  one  hundred  acres  was  to  be  taxed 
higher  than  another,  except  town  lots,  and  no 
town  lot  was  to  be  assessed  higher  than  two  hun- 
dred acres  of  land.  Free  men  were  to  pay  a 
poll-tax,  but  it  was  not  to  exceed  the  tax  on  one 
hundred  acres  of  land.  There  was  also  a  poll-tax 
on  slaves,  but  it  was  not  to  be  more  than  the  tax 
on  two  hundred  acres  of  land.  The  principle  of 
this  poll-tax  law  possibly  was  clear  to  our  fore- 
fathers, but  it  is  not  so  to  us. ' 


*  In  a  valuable  brief  prepared  for  use  in  the  famous  Income 
Tax  Cases  of  1895,  Judge  J.  M.  Dickinson,  Assistant  Attorney- 
General  of  the  U.  S.,  presents  a  comparative  analysis  of  early 
State  Constitutions,  showing  that  Tennessee  was  among  the 
first  to  declare  the  principle  of  equality  and  uniformity.  It 
was  declared,  rather  than  adopted,  in  the  first  Constitution. 


THE   CONSTITUTION   Otf   1796.  93 

The  Governor  was  elected  by  the  people  for  a  term 
of  two  years.  He  was  required  to  be  twenty-five 
years  of  age  and  to  own  five  hundred  acres  of  land. 
The  succession  was,  as  now,  to  the  Speaker  of  the 
Senate,  an  illogical  and  undemocratic  arrangement. 
The  Governor's  council  was  omitted.  Every  free- 
holder over  the  age  of  twenty-one,  and  every  male 
citizen  over  the  age  of  twenty-one  who  had  been 
for  six  months  a  resident  of  the  county  where  his 
vote  was  offered,  was  an  elector  of  the  Governor 
and  of  members  of  the  Assembly. 

This  clause  allowed  free  negroes  to  vote,  and 
they  did  vote  until  the  Constitution  of  1834  de- 
clared that  only  free  white  men  should  have  the 
right.  Tennessee  had  in  the  meantime  received 
large  accessions  of  free  negroes,  and  was  anxious 
to  stop  the  inflow. 

The  Judicial  power  was  vested  in  such  superior 
and  inferior  Courts  of  law  and  equity  as  the  Legis- 
lature might  establish. 

Herein  lay  probably  the  gravest  defect  of  the 
Constitution.  The  true  American  idea  of  govern- 
ment is  that  there  shall  be  three  co-ordinate  depart- 
ments. In  1796,  this  had  already  been  declared  in 
the  Federal  Constitution.  The  Supreme  Court  of 
the  United  States  is  independent  of  Congress  and 


94  CONSTITUTIONAL   HISTORY. 

of  the  President,  and  there  is  no  power  in  Congress 
to  coerce  it.  But  a  Court  created  by  Legislative 
act,  and  subject  to  abolition  in  the  same  mariner,  is 
not  an  independent  body,  and  certainly  is  not  co- 
ordinate with  the  law-making  power. 

The  vice  of  the  system  was  demonstrated  early 
in  our  history,  when  a  Legislature  threatened -to 
abolish  a  Court  which  denied  the  validity  of  certain 
of  its  enactments. 

The  Judges  and  the  Attorneys-General  were 
elected  by  joint  ballot  of  the  two  houses,  to  hold 
office  during  good  behavior. 

Each  Court  appointed  its  own  clerk,  to  hold  dur- 
ing good  behavior.  Justices  of  the  Peace  were  ap- 
pointed by  the  Assembly  and  commissioned  by  the 
Governor,  to  serve  during  good  behavior.  The 
number  was  not  to  exceed  two  for  each  Captains 
Company,  except  that  the  Company  which  included 
the  County  town  was  entitled  to  three.  Coroners, 
Sheriffs,  Trustees,  and  Constables  were  elected  by 
the  County  Court  for  two  years.  The  same  body 
appointed  Kegisters  and  Rangers,  to  serve  during 
good  behavior.  The  civil  district,  as  part  of  the 
County  organization,  does  not  appear  till  1834. 

The  Militia  establishment  was  elaborate  and  im- 
portant as  the  time  required,  and  it  will  readily  be 


THE   CONSTITUTION   OJ?   1796.  95 

understood  that  legislative  action  was  not  necessary 
to  call  out  the  troops. 

The  eighth  article  denies  to  clergymen  the  right 
to  sit  in  the  Assembly,  and  declares  that  no  one 
who  denies  the  being  of  God  or  a  future  state  of 
rewards  and  punishments,  shall  hold  any  office  in 
the  civil  department  of  the  State.  There  seems  to 
be  a  good  deal  of  worldly  wisdom  in  this  tacit  per- 
mission to  unbelievers  to  take  the  lead  in  the  mili- 
tary service. 

It  is  declared  in  the  Bill  of  Rights  :  "  That  all 
men  have  a  natural  and  indefeasible  right  to  wor- 
ship Almighty  God  according  to  the  dictates  of 
their  own  consciences  ;  that  no  man  can  of  right  be 
compelled  to  attend,  erect  or  support  any  place  of 
worship,  or  to  maintain  any  ministry  against  his 
consent;  that  no  human  authority  can  in  any  case 
whatever  control  or  interfere  with  the  rights  of 
conscience ;  and  that  no  preference  shall  ever  be 
given  by  law  to  any  religious  establishment  or  mode 
of  worship.  That  no  religious  test  shall  ever  be  re- 
quired  as  a  qualification  to  any  office  or  public  trust  un- 
der this  State" 

This  was  a  full  and  ample  declaration  of  religious 
liberty,  and  apparently  it  did  not  occur  to  the  Con- 
vention that  there  was  any  conflict  between  these 


96  CONSTITUTIONAL   HISTORY. 

provisions  and  the  requirement  that  office  holders 
should  believe  in  God  and  in  a  future  state  of  re- 
wards and  punishments. 

On  the  subject  of  religious  liberty,  it  may  be 
added  that  the  Constitution  of  North  Carolina, 
which  was  adopted  by  Franklin,  with  a  few  amend- 
ments, has  in  its  thirty-second  section  the  follow- 
ing words  :  "  That  no  person  who  shall  deny  the 
being  of  God,  or  the  truth  of  the  Protestant  religion, 
or  the  divine  authority  of  either  the  Old  or  New 
Testaments,  or  who  shall  hold  religious  principles 
incompatible  with  the  freedom  and  safety  of  the 
State,  shall  be  capable  of  holding  any  office  or  place 
of  trust  or  profit  in  the  civil  department  within  this 
State."  This  was  the  law  of  our  territory  so  long  as  it 
remained  a  part  of  North  Carolina.  And  unless  the 
provision  was  omitted  from  the  Constitution  as  re- 
cast by  Franklin,  there  certainly  was  a  deliberate 
and  most  unjust  limitation  of  religious  liberty  on 
the  soil  of  Tennessee  and  by  [a  law  made  by  its 
own  people.  It  is  improbable  that  this  section  was 
omitted.  A  more  stringent  requirement  was  pro- 
posed in  the  Houston  Constitution,  and  the  Carolina 
provision  is  in  accord  with  the  temper  of  the  re- 
ligious leaders  of  Franklin. '  It  will  be  observed 
that  freedom  of  opinion  was  not  restricted,  directly. 


THE    CONSTITUTION   OF    1796.  97 

One  was  at  liberty  to  believe  any  thing,  but  only  the 
Protestants  had  the  right  of  civil  preferment.  It 
can  not  be  maintained  that  there  was  religious  lib- 
erty where  such  a  law  prevailed,  and  there  can  be 
but  little  doubt  that  it  prevailed  in  Franklin. 

The  Tennessee  Constitution  was,  as  we  have  seen, 
more  liberal  because  it  established  equality  between 
sects.  And  as  a  matter  of  fact,  I  do  not  recall  any 
suggestion,  even,  of  the  exclusion  of  a  citizen  from 
office  on  account  of  his  religious  opinions.  That 
the  Constitution  of  1796  did  not  go  so  far  as  the 
very  advanced  religious  or  irreligious  thought  of 
the  present  time  demands  may  be  true ;  but,  in 
practical  effect,  it  did  establish  unlimited  religious 
liberty.  Considered  with  reference  to  the  condi- 
tions of  the  time,  it  was  exceptionally  liberal  and 
just  in  this  respect.  North  Carolina  retained  the 
provision  requiring  belief  in  the  Protestant  religion 
till  1835. 

The  Constitution  of  1796  authorized  imprison- 
ment for  debt,  but  provided  that  the  debtor  should 
not  be  held  after  surrendering  his  estate  for  the 
benefit  of  creditors,  unless  the  presumption  of  fraud 
was  strong.* 

*  This  provision  appears  in  'the  Bill  of  Rights  of  1834,  but 
imprisonment  for  debt  was  abolished  by  statute  in  1842. 


98  CONSTITUTIONAL   HISTORY. 

The  press  was  to  be  free,  and,  in  short,  the  prin- 
ciples of  the  English  and  American  Bills  of  Rights 
were  re-affirmed  and  declared  to  be  essential  parts 
of  the  Constitution. 

The  foundation  principles  of  this  Constitution 
are  as  old  as  English  history.  The  modifications  of 
English  doctrines  and  institutions  in  the  direction 
of  the  new  American  conceptions  were  imperfect, 
and  in  some  respects  purely  tentative. 

The  scheme  of  selecting  officers  was  artificial,  in- 
consistent, and  undemocratic.  The  people,  in  whom 
the  Bill  of  Rights  declares  all  power  to  inhere,  were 
allowed  to  elect  only  the  Governor  and  the  mem- 
bers of  Assembly.  The  tenure  of  many  offices 
was,  in  effect,  for  life.  And  although  there  are 
well  founded  objections  to  an  elective  judiciary,  I 
can  not  but  regard  life  tenure  of  office  as  anoma- 
lous, and  as  inadmissible  and  dangerous  in  a  free 
country,  and  I  venture  to  assert  that  experience 
does  not  show  results  that  justify  the  maintenance 
in  the  State  nor  in  the  Nation  of  a  system  so  abso- 
lutely undemocratic.  It  seems  to  be  illogical  and 
wrong,  and  an  assurance  of  disturbance  and  of  dan- 
ger to  place  one  of  the  three  departments  of  the  Gov- 
ernment beyond  the  reach  of  the  people.  Stability 
and  independence  are  the  virtues  claimed  for  the 


THE   CONSTITUTION   OF   1796.  99 

system,  and  its  advocates  treat  with  indifference 
the  suggestion  that  these  qualities  may  become  ex- 
cessively developed. 

The  omission  of  the  Constitution  of  1796  to 
create  a  Supreme  Court  as  a  permanent  branch  of 
the  Government,  co-ordinate  with  the  Executive 
and  the  Legislative  branches,  was  due  to  a  failure 
to  comprehend  the  wisdom  of  the  Federal  Consti- 
tution, and  to  the  adherence  of  the  Convention  to 
the  Constitution  of  .North  Carolina,  under  which  all 
courts  were  created  and  abolished  by  the  Legisla- 
ture. The  distribution  of  the  powers  of  the  Gov- 
ernment to  three  distinct  co-ordinate  departments 
is  essentially  an  American  plan.  The  counterpart 
of  the  Supreme  Court  of  the  United  States  does 
not  exist  in  England,  and  no  other  judicatory  of 
equal  rank  and  power  is  known  to  the  history  of 
institutions.  This  plan  of  co-ordinate  departments 
was  first  fully  developed  in  our  Federal  polity  from 
which  it  has  spread  to  the  States.* 

The  North  Carolina  Constitution,  however,  was 
formed  eleven  years  before  the  meeting  of  the  Fed- 
eral Convention,  and  before  this  most  original  of 

*  The  beginnings  of  the  system  are  to  be  found  in  the  colonies 
wherein  the  courts  were  frequently  called  upon  to  construe  the 
charters  and  to  pass  upon  the  validity  of  legislative  acts. 


100  CONSTITUTIONAL     HISTORY. 

American  institutions  was  conceived.  Therefore, 
while  we  must  regard  the  Tennessee  Constitution 
as  defective  in  the  respect  now  under  consideration, 
it  would  be  unjust  to  censure  its  framers  on  that 
account. 

Other  grave  defects  were  developed  in  the  prac- 
tical operation  of  the  Constitution.  Mr.  Jefferson 
is  quoted  as  saying  that  it  was :  "  The  least  imper- 
perfect  and  most  republican  "  of  the  State  Consti- 
tutions.* Mr.  Phelan,  whose  utterances  are  gen- 
erally very  positive  and  sometimes  extreme,  says 
that  it  was  "  unrepublican  and  unjust  in  the  highest 
degree."  He  characterizes  as  "  monstrous "  the 
provision  that  no  one  hundred  acres  of  land  should 
be  taxed  higher  than  another,  and  declares  that  it 
was  an  "  entail  law  in  disguise."  The  Constitution, 
he  says  truly,  was  made  by  land  owners;  and  he 
adds  that  they  were  also  speculators.  They  owned 
the  more  valuable  lands  contiguous  to  the  centers 
of  population,  Jonesboro,  Greeneville,  Knoxville, 
Nashville,  which,  under  a  just  system,  would  have 
been  assessed  higher  than  the  lands  remote  from 
the  towns;  but  as  no  hundred  acres  could  be  taxed 
higher  than  another,  the  owners  were  able  to  hold 


*  Ramsey,  p.  G57. 


THE   CONSTITUTION   OF   1796.  101 

these  valuable  lands  indefinitely.  It  will  not  be 
denied  that  there  is  justice  in  the  criticism,  and  it 
is  very  certain  that  such  a  system  would  not  be 
tolerated  now.  But  at  that  time  the  inequalities  in 
land  values,  on  account  of  location,  were  slight. 

I  have  before  me  the  Journal  of  the  Convention 
which  is  brief  and  unsatisfactory.  The  tax  clause 
was  originally  in  the  following  words  :  "All  lands 
held  in  this  State  by  deed  or  grant  shall  be  taxed 
equal  and  uniform  in  such  manner  that  no  one 
hundred  acres  shall  be  taxed  higher  than  another, 
except  town  lots,  and  no  town  lot  or  free  man  shall 
be  taxed  higher  than  one  hundred  acres,  and  no 
slave  higher  than  two  hundred  acres,  for  each 
poll."  * 

The  subject  appears  to  have  been  debated  twice. 
On  the  first  of  February,  Mr.  McMinn  moved  to 
strike  out  the  words  "  town  lots,"  and  that  being 
lost,  he  moved  that  the  entire  section  be  stricken 
out,  which,  in  the  language  of  the  Journal,  "  passed 
in  the  negative."  Three  days  later,  the  subject 
being  again  under  consideration,  the  section  was 
amended  on  motion  of  McNairy  and  Rutledge,  so 
as  to  cover  lands  held  by  entry,  and  so  as  to  re- 

*  Journal,  p.  14. 


102  CONSTITUTIONAL    HISTORY. 

cast  the  last  sentence  without  changing  the  mean- 
ing. McClung  and  Mitchell  moved  to.  strike  out 
the  words  "  town  lots,"  which  "  passed  in  the  neg- 
ative." Cocke  then  moved  that  no  town  lot  be 
taxed  higher  than  two  hundred  acres,  which  was 
agreed  to.  Beyond  this  the  Journal  shows  noth- 
ing.* McMinn  seems  to  have  opposed  the  entire 
section,  but  it  is  not  recorded  that  he  offered  any 
substitute.  There  is  nothing  to  show  that  there 
was  any  other  opposition  to  the  plan.  It  is  prob- 
able that  the  town  tax-payers  and  land  owners  did 
their  best  to  have  their  rural  compatriots  bear 
a  full  share  of  the  burden  of  taxes,  but  it  is  sub- 
mitted that  there  is  no  reason  for  impeaching  the 
motives  of  the  Convention.  That  these  provisions 
were  unjust  in  their  effect,  will  hardly  be  denied, 
but  we  must  remember  that  Tennessee  was  a 
frontier  agricultural  community,  that  land  was  ex- 
ceedingly cheap,  and  that  the  wisest  men  are  un- 
able to  read  the  future.  Moreover,  the  tax  laws 
followed  those  of  the  Territory.  It  had  been  en- 
acted, in  1794,  that  lands  should  be  taxed  by  the 
hundred  acres,  except  town  lots.  The  only  other 
subjects  of  taxation  were  white  and  black  polls  and 


*  Journal,  p.  27. 


THE   CONSTITUTION    OF    1796.  103 

stallions.*  To  these  the  policy  of  the  State  added 
billiard  tables,  which  were  taxed  first  at  twenty-five 
dollars  and  then  at  ten  dollars  each. 

Lands,  under  .the  first  State  statute,  were  assessed 
at  twelve  and  one-half  cents  on  the  hundred  acres ; 
town  lots,  at  twenty-five  cents  each ;  white  polls, 
twelve  and  one-half  cents;  black  polls,  twenty-five 
cents ;  stallions,  a  sum  equal  to  the  season  of  one 
mare ;  and  billiard  tables,  twenty-five  dollars  each. 
Such  were  the  sources  of  revenue  of  the  infant 
State  of  Tennessee. 

There  is  one  other  feature  of  the  Constitution  to 
which  I  wish  to  direct  attention.  I  have  already 
argued  that  the  authority  of  the  Legislature  over 
the  Judiciary  was  excessive,  and  if  we  regard  the 
Constitution  closely,  we  shall  find  the  same  criticism 
applicable  to  the  relations  of  the  Assembly  to  all 
the  inferior  members  of  the  State.  Directly  or  in- 
directly, the  Assembly  had  the  power  of  influ- 
encing the  selection  and  therefore  the  policy,  of 
all  State  officers.  It  elected  the  Judges,  Attor- 
neys for  the  State,  and  Justices  of  the  Peace. 
The  Judges  chose  their  own  Clerks,  and  the 
County  Court,  composed  of  Justices  who  served 


*  Acts,  1794,  Chap.  3. 


104  CONSTITUTIONAL   HISTORY. 

during  good  behavior,  elected  the  Sheriff,  Cor- 
oner, Trustee,  and  Constables.  It  will  thus  ap- 
pear that  very  superior  advantages  were  afforded 
for  establishing  what  is  now  called  a  ring.  It  will 
not  be  doubted  that  there  were  politicians  in  those 
days  who  were  fully  alive  to  these  advantages. 

Phelan  is  the  only  historian  of  Tennessee  who 
has  given  serious  attention  to  the  construction  and 
the  workings  of  this  Constitution,  but  his  discussion 
of  it  is  scattered  through  several  chapters  and  is 
hardly  coherent.  I  can  not  avoid  the  conclusion 
that  his  sharp  criticisms  are  unjust  to  the  members 
of  the  Convention.  His  language  occasionally  is 
intemperate,  and  in  at  least  one  passage,  the  mo- 
mentum of  his  rhetoric  has  carried  him  far  beyond 
the  limits  of  justice  and  of  fact.  He  declares  that: 
"The  whole  State  was  one  old  Sarum;"  that  the 
condition  of  affairs  in  Tennessee  "put  to  shame 
the  rotten  borough  system  of  England;"  that  "it 
surpassed  the  Athens  of  the  Kings."  *  The  great- 
est respect  for  Mr.  Phelan's  memory  and  the  most 
cordial  appreciation  of  the  value  of  his  book  can 
not  hide  the  fact  that  these  statements  approach 
perilously  near  to  the  absurd.  I  understand  him  in 
effect  to  assail  the  motives  of  the  members  of  the 

*  Hist.  Term.  253,  254. 


THE   CONSTITUTION   OF   1796.  105 

Convention,  in  saying  that  they  left  untried  no  ex- 
pedient consistent  with  a  republican  form  of  Gov- 
ernment to  withhold  power  from  the  people.  I 
have  studied  carefully  every  original  source  of  in- 
formation within  reach,  and  have  tried  to  com- 
prehend the  conditions,  and  the  spirit  of  the 
time,  and  while  I  concur  in  the  opinion  that 
the  Constitution  of  1796  was  defective,  and  even 
unjust  in  important  particulars,  there  is  not  one 
of  its  deficiencies  which  may  not  be  accounted 
for  satisfactorily  by  the  natural  and  honest  con- 
servatism and  by  the  inexperience  of  the  men 
who  composed  the  Convention.  There  is  no 
need  to  impugn  their  motives,  and  there  is  no 
ground  for  impugning  them.  If  they  were  guilty 
of  contriving  against  popular  rights,  what  must 
Mr.  Phelan  have  thought  of  the  Constitution  of 
North  Carolina,  under  which  the  Legislature  not 
only  exercised  all  the  powers  of  the  Tennessee 
Assembly,  but  even  elected  the  Governor?  As  a 
matter  of  fact,  he  says,  on  page  199,  that  the  Ten- 
nessee Convention  "made  such  changes  in  the 
North  Carolina  Constitution  as  were  commensu- 
rate with  the  progress  of  Democratic  ideas  in 
America,  giving  less  power  to  the  representatives 
of  the  people  and  more  to  the  people  them- 


106  CONSTITUTIONAL   HISTORY. 

selves,  but  leaving  the  seeds  of  future  dissensions 
in  the  election  of  County  officers  and  the  taxa- 
tion of  land."  To  commend  the  Constitution  as 
"  commensurate  with  the  progress  of  Democratic 
ideas,"  to  say  that  it  gave  to  the  people  more 
rights  that  a  Constitution  which  satisfied  the  free 
State  of  North  Carolina  until  1835,  and  then  to  say 
that  it  produced  a  condition  of  affairs  worse  than 
that  in  Athens  under  the  kings,  is  to  he  seriously 
inconsistent.* 

I  think  we  may  conclude  that  the  truth  is,  that 
bad  as  the  Constitution  was  in  many  respects,  it 
was,  nevertheless,  the  result  of  the  conscientious 
efforts  of  a  company  of  honest  and  sincerely  pa- 
triotic men,  whose  task  was  difficult  and  who  ac- 
complished it,  as  well  as  could  reasonably  have 
been  expected.  Mr.  Jefferson  was  a  competent 
judge  of  such  matters ;  he  lived  at  the  time  when 
the  Constitution  was  made  and  was  familiar  with 
the  general  political  conditions  of  the  country  and 


*  Phelan's  Chapters  on  "  Tennessee  Institutes  and  Local  Self- 
Government "  are  of  the  greatest  value,  and  I  wish  to  acknowl- 
edge my  indebtedness  to  them.  There  are  some  extreme  opin- 
ions, and  some  careless  statements,  but  upon  the  whole  no 
better  work  than  these  two  chapters  has  been  done  in  Ten- 
nessee history. 


THE    CONSTITUTION    OF    1796.  107 

with  the  Constitutions  of  the  several  States,  and 
there  is  every  reason  for  believing  that  he  was 
right  when  he  said  that  our  Constitution  was  the 
least  imperfect  and  the  most  Eepublican.  I  have 
no  pleasure  in  disputing  Mr.  Phelan's  conclusions, 
but  I  maintain  that  the  Constitution  of  1796  was  the 
natural  product  of  the  political  and  social  condi- 
tions of  the  time,  and  that  it  was  in  no  sense  a 
wicked  or  willful  device  for  the  abridgment  of 
popular  rights. 

The  people  did  not  realize  how  much  their  rights 
and  powers  had  been  enlarged,  and  they  lacked 
confidence  in  themselves. 

In  1834  it  was  different,  and  I  shall  endeavor 
hereafter  to  indicate  the  process  of  social  and  po- 
litical evolution  whose  results  were  formulated  in 
the  work  of  the  Convention  of  that  year. 

The  Convention  of  1796  met  January  11  and  ad- 
journed February  8  of  that  year.  The  Constitu- 
tion was  not  submitted  to  the  people. 


The  method  of  choosing  Presidential  Electors  which  was 
first  adopted  in  Tennessee,  in  the  year  1796,  and  again  resorted 
to  in  1799,  was  unique  and  is  worthy  of  attention.  The  State 
was  then  partitioned  into  three  districts,  Washington,  Hamil- 
ton and  Mero.  On  the  eighth  of  August,  1796,  an  act  was 


108  CONSTITUTIONAL    HISTORY. 

passed  naming  three  persons  from  each  County  to  choose  the 
Electors.  The  Commissioners  thus  chosen  from  the  Counties 
in  Washington  District,  were  to  meet  at  Jonesboro,  those 
chosen  from  Hamilton,  at  Knoxville,  and  those  from  Mero,  at 
Nashville,  on  a  day  designated,  and  ballot  for  Electors  for  their 
respective  districts.  In  case  of  a  tie,  the  decision  was  to  be 
made  by  drawing  lots. 


WILLIAM   B.  CARTER, 

President  of  Convention  of  1834. 


THE    CONSTITUTION    OF   1834.  109 


CHAPTER  Y. 

THE  CONSTITUTION  OF  1834. 
1834-1870. 

The  Constitutional  Convention  of  1834  assem- 
bled at  Nashville  on  the  19th  of  May,  a,nd  adjourned 
•  on  the  30th  of  August  of  that  year.  The  Consti- 
tution was  submitted  to  the  people  on  the  5th  and 
6th  of  March,  1835,  and  was  ratified  by  a  vote  of 
42,666  against  17,691.  As  I  have  just  been  consid- 
ering the  provisions  of  the  Constitution  of  1796,  I 
shall  enter  at  once  upon  an  analysis  of  the  Consti- 
tution of  1834,  in  order  that  the  two  may  easily  be 
compared,  reserving  for  the  latter  part  of  this  Chap- 
ter some  general  remarks  which  are  suggested  by  a 
study  of  the  Journal  of  the  Convention. 

The  Declaration  of  Rights  is  made  the  first  article 
of  the  Constitution  instead  of  the  last,  as  in  1796. 
The  first  section  of  the  second  article  is  in  the  fol- 
lowing words:  "The  powers  of  the  Government 
shall  be  divided  into  three  distinct  departments,  the 
Legislative,  Executive,  and  Judicial."  This  is  di- 
rected to  the  most  conspicuous  defect  of  the  old 
Constitution.  The  supreme  importance  of  this 


110  CONSTITUTIONAL    HISTORY. 

fundamental  division  of  powers  had  been  so  forci- 
bly impressed  upon  the  people  of  the  State  that  it 
was  provided,  for  in  the  first  words  of  the  new  Con- 
stitution. The  ninth  section  of  the  second  article 
declares  that  no  one  shall  be  a  Representative  in  the 
General  Assembly  unless  he  be  twenty-one  years 
of  age,  and  shall  have  been  a  citizen  of  the  State 
for  three  years,  and  a  resident  of  the  County  which 
he  represents  for  one  year  immediately  preceding 
the  election  ;  and  that  no  one  shall  be  a  Senator  un- 
less he  be  thirty  years  of  age,  and  have  the  other 
qualifications  prescribed  for  Representatives.  These 
changes,  and  nearly  all  others  that  are  to  be  noticed, 
make  the  Constitution  more  democratic,  more 
American.  The  people  had  outlived  the  old  Con- 
stitution and  were  determined  to  amend  it  to  meet 
their  social  and  political  needs  and  opinions. 

The  next  important  section  is  upon  the  subject 
of  taxation,  in  which  it  is  declared:  "That  all 
land  liable  to  taxation,  held  by  deed,  grant  or  entry, 
town  lots,  bank  stocks,  slaves  between  the  ages  of 
twelve  and  fifty  years,  and  such  other  property  as 
the  Legislature  may  from  time  to  time  deem  expe- 
dient, shall  be  taxable.  All  property  shall  be  taxed 
according  to  its  value;  that  value  to  be  ascertained 
in  such  manner  as  the  Legislature  shall  direct,  so 


THE    CONSTITUTION    OF   1834.  Ill 

that  the  same  shall  be  equal  and  uniform  through- 
out the  State.  ~No  one  species  of  property  from 
which  a  tax  may  be  collected  shall  be  taxed  higher 
than  any  other  species  of  property  of  equal  value, 
but  the  Legislature  shall  have  the  power  to  tax 
merchants,  peddlers,  and  privileges  in  such  manner 
as  they  may  from  time  to  time  direct.  The  tax  on 
white  polls  shall  be  made  in  such  manner  and  of 
such  an  amount  as  may  be  prescribed  by  law."  The 
succeeding  section  provides  that  the  General  As- 
sembly shall  have  the  power  to  authorize  Counties 
and  incorporated  towns  to  impose  taxes  as  pre- 
scribed by  law ;  all  property  to  be  taxed  according 
to  its  value  and  upon  the  principles  established  in 
regard  to  State  taxation. 

These  provisions,  as  well  as  those  above  referred 
to,  are  full  of  history,  and  comparison  of  the  prim- 
itive and  arbitrary  provisions  of  the  tax  law  of 
the  Constitution  of  1796,  with  the  well-considered 
and  equitable  regulations  just  quoted,  reveals  in 
outline  the  industrial  and  commercial  history  of 
Tennessee  during  the  period  between  the  two  in- 
struments. The  law  of  1796  shows  upon  its  face 
that  it  was  established  by  a  community  whose 
principal  source  of  revenue  was  large  areas  of  cheap 
land  together  with  town  lots  of  uncertain  value, 


112  CONSTITUTIONAL   HISTORY. 

and  a  few  slaves  and  brood  horses,  and  that  it  was 
prepared  by  men  of  little  or  no  experience  in  State- 
making.  The  law  of  1834  indicates  an  extraordi- 
nary growth  of  that  society.  Not  only  lands  and 
slaves  are  taxed,  but  also  bank  stock,  merchants 
and  privileges  of  various  kinds.  The  backwoods  set- 
tlements have  grown  into  an  industrial  community 
where  all  the  vocations  of  civilized  life  are  carried 
on,  and  in  which  incorporated  towns  have  grown 
up  and  have  become  of  sufficient  importance  to  be 
subjects  of  legislation  and  to  be  endowed  with  the 
power  of  self-taxation.  The  minds  of  the  people 
have  been  enlarged;  a  correct  conception  of  the 
principles  of  taxation  has  succeeded  the  rude  meth- 
ods of  1796.  The  second  Constitution  recognizes 
and  proclaims  uniformity  and  equality  as  the  true 
rule  of  taxation,  and  does  not,  like  its  predecessor, 
declare  equality  and  establish  inequality.  I  do  not 
commit  myself  to  the  absolute  justice  and  correct- 
ness of  the  tax  provisions  of  the  Constitution  of 
1834,  but  I  do  not  hesitate  to  say  that  they  were 
sufficient  for  the  needs  of  the  State  at  that  time, 
and  were  as  equitable  as  they  could  well  have  been 
made.  They  were  sufficient  for  that  time,  but  they 
are  not  adapted  for  the  present  time,  especially  if 
we  accept  the  judicial  constructions  that  have  been 


THE    CONSTITUTION   OF    1834.  113 

put  upon  them ;  and  with  a  very  few  notable  excep- 
tions, these  interpretations  commend  themselves  to 
the  legal  profession.  Tennessee  was  not  even  yet  a 
highly  organized  society.  The  population  was  less 
than  700,000,  and  of  this  number  150,000  were 
slaves.  The  era  of  public  improvements  had  not 
begun,  there  were  no  railroads  and  no  cities  worthy 
of  name.  But,  if  no  history  of  the  State  had  ever 
been  written,  we  should  know  from  this  tax  law 
that  there  were  municipalities  and  banks,  and  occu- 
pations of  the  kinds  which  are  recognized  and  taxed 
as  privileges.  This  clause  proves  increase  of  popu- 
lation and  wealth,  diversification  of  industries,  en- 
larged knowledge  of  the  principles  of  Government, 
and  general  advancement  of  intelligence. 

The  third  article  of  the  Constitution  deals  with 
the  Executive.  The  Governor  is  required  to  be 
thirty  years  of  age  and  the  property  qualification 
is  omitted  ;  another  instance  of  reform  in  the  direc- 
tion of  true  American  and  democratic  principles. 
The  fourth  article  is  upon  the  subject  of  suffrage. 
Here  again  the  property  qualification  is  wiped 
away,  and  every  free  white  *  man  of  the  age  of 

*  There  is  reason  to  believe  that  free  negroes  would  not 
have  been  deprived  of  the  suffrage,  but  for  the  fact  that  so 
many  were  being  attracted  to  the  state. 


114  CONSTITUTIONAL    HISTORY. 

twenty-one,  being  a  citizen  of  the  United  States 
and  a  citizen  of  the  County  wherein  he  may  offer 
his  vote  for  six  mouths  next  preceding  the  day  of 
election,  is  granted  the  right  to  vote,  and  it  is  pro- 
vided that  no  one  shall  be  denied  the  right  of  suf- 
frage except  for  conviction  of  an  infamous  crime. 

Article  VI  vests  the  judicial  power  in  one  Su- 
preme Court  and  such  inferior  Courts  as  the  Legis- 
lature may  establish.  This  provides  for  a  Consti- 
tutional Supreme  Court  which  the  Legislature  does 
not  create  and  can  not  abolish,  and  thus  is  com- 
pleted the  establishment  and  the  proper  distribution 
of  the  powers  of  a  fully  equipped  and  organized 
American  State.  The  Legislature  might  still  create 
and  abolish  inferior  Courts,  but  its  action  could 
always  be  revised  by  the  Supreme  Court. 

The  Supreme  Court  was  composed  of  three 
Judges,  one  from  each  grand  division  of  the  State, 
and  its  jurisdiction  was  exclusively  appellate.  It 
was  to  sit  at  one  place  in  each  grand  division  of 
the  State,  and  its  Judges  were  required  to  be  thirty- 
five  years  of  age.  The  term  of  office  was  twelve 
years. 

The  Legislature  elected  Attorneys  for  the  State 
by  joint  vote  of  both  Houses,  the  term  of  office 
being  six  years.  The  Clerks  of  the  Supreme  Court 


THE   CONSTITUTION   OF   1834.  115 

were  to  be  appointed  by  the  Judges  for  six  years. 
Clerks  and  Masters  of  the  Chancery  Court  were 
appointed  by  Chancellors  for  the  same  period. 
Clerks  of  other  inferior  Courts  were  elected  by  the 
qualified  voters  of  the  respective  Counties,  for  a 
term  of  four  years. 

The  Counties  of  the  State  were  to  be  laid  off  as 
the  General  Assembly  should  direct,  into  Districts 
of  convenient  size,  so  that  the  whole  number  in 
each  County  should  not  be  more  than  twenty-five, 
or  four  for  every  one  hundred  square  miles,  and 
there  were  to  be  two  Justices  of  the  Peace  and  one 
Constable  elected  in  each  District  by  the  qualified 
voters  therein,  except  Districts  including  County 
towns,  which  were  allowed  three  Justices  and  two 
Constables.  The  jurisdiction  of  these  officers  was 
co-extensive  with  the  County.  The  Justices  were  to 
serve  for  six  and  the  Constables  for  two  years.  The 
Justices  were  to  be  commissioned  by  the  Governor, 
and  the  Legislature  was  authorized  to  provide  for  the 
appointment  of  an  additional  number  in  incorporated 
towns.  These  provisions  are  in  every  essential  re- 
spect superior  to  the  corresponding  parts  of  the  old 
Constitution.  In  the  first  place,  the  Counties  had 
not  before  been  divided  into  Districts,  and  the  Jus- 
tices were  appointed  from  the  Captains  Companies, 


116  CONSTITUTIONAL   HISTORY. 

and  the  Captains  Company  as  a  political  quantity 
was  indefinite  and  unsatisfactory,  and  the  method 
was  an  innovation  which  had  nothing  to  commend 
it.  The  Justices,  it  will  be  remembered,  had  been 
chosen  by  the  Legislature  and  the  Constables  by 
the  County  Court,  under  the  Constitution  of  1796. 

By  Article  VII  each  County  was  authorized  to 
elect  a  Sheriff  and  a  Trustee  to  serve  for  two  years, 
and  a  Register  to  serve  for  four  years.  The  Cor- 
oner and  the  Ranger,  who  were  to  hold  office  for 
four  years,  were  elected  by  the  County  Court. 

Ministers  of  the  Gospel  and  Priests  are  excluded 
from  the  Legislature,  and  persons  who  deny  the 
being  of  a  God  and  a  future  state  of  rewards  and 
punishment  are  denied  the  right  to  hold  civil  office 
in  the  State. 

A  new  and  important  qualification  for  office  is 
established  in  this  Article.  It  is  declared  :  "  That 
any  person  who  shall,  after  the  adoption  of  the 
Constitution,  fight  a  duel,  or  knowingly  be  the 
bearer  of  a  challenge,  or  send  or  accept  a  chal- 
lenge for  that  purpose,  or  aid  or  abet  in  fighting  a 
duel,  shall  be  deprived  of  the  right  to  hold  any 
office  of  honor  or  profit  in  the  State,  and  shall  be 
punished  otherwise  in  such  manner  as  the  Legisla- 
ture may  prescribe."  This  strong  but  proper  and 


THE   CONSTITUTION   OF   1834.  117 

wise  provision  follows  and  emphasizes  Acts  passed 
in  1817  and  1829.  The  legislation  of  Tennessee 
against  dueling  is  an  interesting  illustration  of  the 
growth  of  a  public  sentiment.  As  far  back  as 
the  10th  of  November,  1801,  an  Act  was  passed 
providing  that  whoever  should  fight  a  duel  should 
"  forfeit  and  pay  the  sum  of  fifty  dollars,  and  fur- 
ther be  committed  to  close  gaol  for  sixty  days, 
there  to  remain  without  bail  or  mainprize,  and  also 
forfeit  the  rights  and  privileges  of  a  citizen  for  and 
during  a  space  of  one  year."  By  that  Act,  killing 
a  person  in  a  duel  \vas  declared  to  be  willful  mur- 
der, punishable  by  death  without  benefit  of  clergy.* 
The  Act  of  1829  fixed  the  punishment  for  dueling 
at  confinement  in  the  penitentiary  for  not  less  than 
three  nor  more  than  ten  years.  This  statute  re- 
mained in  effect  under  the  Constitution  of  1834, 
but  the  disqualification  for  office  was  declared,  as  I 
have  shown,  in  the  Constitution.  The  public  sen- 
timent in  Tennessee  against  dueling  was  largely 
created  by  Judge  Hugh  Lawson  White,  who  was 
the  author  of  the  Act  of  1817. 

The  increase  of  population  is  indicated   in  the 
provision  that  new  Counties  should  consist  of  not 


*  Acts,  1801,  Chap.  32. 


118  CONSTITUTIONAL   HISTORY. 

less  than  350  square  miles,  and  should  contain 
at  least  450  qualified  voters.  Under  the  old  Con- 
stitution, the  minimum  area  of  new  counties  was 
fixed  at  625  square  miles. 

Under  the  Constitution  of  1796,  divorces  had 
been  granted  by  the  Legislature,  and  the  public 
business  is  said  to  have  suffered  greatly  by  that 
fact.  Samuel  Gr.  Smith,  Secretary  of  State,  re- 
ported to  the  Convention  of  the  10th  of  June, 
1834,  that  within  the  six  years  immediately  preced- 
ing that  date,  163  applications  for  divorce  had  been 
presented  to  the  Legislature,  of  which  number  only 
sixty  had  been  granted.*  Very  much  was  said  in 
the  Convention  in  opposition  to  this  method  of 
granting  divorces,  particularly  upon  the  ground 
that  the  hearings  consumed  time  and  provoked 
acrimonious  controversy.  I  have  no  doubt  that  as 
a  matter  of  public  economy,  and  it  may  be  of  pro- 
priety and  of  decency,  the  method  was  objection- 
able. But  in  view  of  the  fact  that  three-fifths  of 
the  applications  appear  to  have  been  rejected,  one 
would  be  willing  almost  to  have  the  Legislature 
resume  jurisdiction  of  the  subject  if  there  were  any 
assurance  that  the  same  policy  would  prevail. 

*  Journal,  79. 


THE   CONSTITUTION   OP   1834.  119 

Speaking  for  myself,  I  regard  the  facility  of  divorce 
which  is  secured  by  the  laws  of  Tennessee  as  in 
the  highest  degree  wrong  and  as  injurious  to  pub- 
lic and  to  private  morality,  and  I  can  riot  neglect 
the  opportunity  to  express  unqualified  approval  of 
the  better  policy  of  the  early  Legislatures.  The 
Constitution  of  1834,  however,  withdrew  the  power 
to  grant  divorces  from  the  Legislature  and  vested 
it  in  the  Courts.  My  objection  is  not  to  the  change 
of  forum,  but  to  the  statutes,  and  to  the  dangerous 
liberality  with  which  they  have  been  construed  in 
favor  of  divorce  suitors. 

Another  provision  forbids  the  Legislature  to  au- 
thorize lotteries.  The  Supreme  Court  had  already 
declared  lotteries  to  be  gaming,  but  the  practice 
seems  to  have  been  flagrant  in  the  State.  The  re- 
port made  to  the  Convention  by  West  H.  Hum- 
phreys, Chairman,  on  the  24th  of  July,  says  :  "  The 
Committee  are  aware  that  it  may  be  said  that  the 
Legislature  has  never  authorized  lotteries  to  a  very 
extravagant  extent,  yet  it  is  nevertheless  true  that 
that  body  is  constantly  in  the  habit  of  exercising 
their  power  in  this  respect.  The  Committee  are  of 
opinion  that  it  is  a  power  which  they  should  not 
have,  and  that  a  prohibition  to  that  effect  should  be 


120  CONSTITUTIONAL    HISTORY. 

a  part  of  our  fundamental  law."  *  The  lottery  had 
been  a  favorite  device  for  raising  money  in  aid  of 
public  enterprises.  In  1794,  the  Territorial  Legis- 
lature formulated  an  elaborate  scheme  of  3,100 
tickets  for  building  a  wagon  road  from  Kingston  to 
Nashville.  Prisons  and  stocks  were  frequently 
built  in  this  way,  and  excellent  purposes  habitually 
promoted.  The  early  legislation  of  Tennessee  was 
friendly  to  lotteries,  but  inimical  to  billiards. 

Stringent  provisions  were  inserted  for  the  pre- 
vention of  special  laws.  These  were  directed  wisely 
against  an  evil  which  had  grown  to  intolerable  pro- 
pertions  under  the  old  regime.  The  report  of  the 
Secretary  of  State,  which  I  have  quoted  above  on 
the  subject  of  divorces,  recites  that  in  the  years 
1829,  1831,  1832,  and  1833,  there  had  been  passed 
in  the  aggregate  1,052  private  acts  and  352  public 
acts.f  The  new  Constitution  did  not  afford  a  com- 
plete remedy  for  this  evil,  but  mitigated  it  very 
much.  I  take  the  liberty  of  suggesting  that  the 
true  remedy,  so  far  as  legislation  upon  local  affairs 
is  concerned,  would  have  been  the  establishment  of 
the  township  system  which  I  have  advocated  in  the 
preceding  chapter,  and  under  which  local  affairs 

*  Journal,  p.  160.  t  Journal,  p.  79. 


THE   CONSTITUTION   OP   1834.  121 

would  have  been  adjusted  by  local  authorities.  I 
arn  continually  impressed  by  the  fact  that  while  the 
South  has  been  constant  and  clamorous  in  advocacy 
of  the  right  of  local  self-government,  in  the  abstract, 
she  has  really  enjoyed  less  of  it  than  any  other  sec- 
tion of  the  country,  and  that  genuine  local  self- 
government  does  not  exist  and  can  not  exist  except 
where  the  Township  System  prevails.  The  earnest 
conviction  that  this  system  is  not  only  incompara- 
bly superior  to  our  present  system,  but  is  the  only 
logical  and  adequate  one  that  has  been  devised  for 
a  free  country,  must  excuse  this  return  to  the 
subject. 

When  the  Convention  met,  the  State  debt  amount- 
ed to  five  hundred  thousand  dollars,  consisting  of 
bonds  issued  for  stock  in  the  Union  Bank.  A 
clause  was  inserted  in  the  Constitution  declaring 
that  a  well  regulated  system  of  internal  improve- 
ment is  calculated  to  develop  the  resources  of  the 
State  and  to  promote  the  happiness  and  prosperity 
of  our  citizens,  and  therefore,  that  it  ought  to  be 
encouraged  by  the  General  Assembly.  This  policy 
was  most  frequently  and  earnestly  advocated  by 
Willie  Blount,  the  younger  half-brother  of  William 
Blount,  who  had  served  three  terms  as  Governor  of 
the  State.  He  was  a  delegate  in  the  Convention 


122  CONSTITUTIONAL    HISTORY. 

from  Montgomery  County,  and  his  reports  and  res- 
olutions upon  this  subject  evince  great  ardor  of 
temperament  and  large  powers  of  rhetoric.  I  can 
not  deny  myself  the  gratification  of  relieving  the 
dullness  of  this  statement  by  quoting  one  of  his  im- 
posing periods,  as  follows :  "  Whereas,  the  geo- 
graphical position  of  Tennessee,  in  reference  to  the 
other  States  of  the  Union,  she  being  central,  and 
whereby  she  is  every-where  separated  at  a  great 
distance  from  the  National  frontier  ;  a  situation  af- 
fording a  peculiarly  favorable  position  for  useful- 
ness ;  a  position  which  gives  her  population  and  her 
citizen  soldiers  the  enviable  characteristic  of  dispos- 
able force  with  the  glorious  privilege  of  being  permit- 
ted, in  a  state  of  war,  to  fly  to  the  succor  of  what- 
ever part  of  the  national  frontier  may  become  the 
theater  of  war,  and  to  co-operate  in  the  national 
defense  with  whatever  sister  State  or  Territory  may 
be  assailed  by  an  invading  foe — thereby  demon- 
strating to  the  world  the  hitherto  doubtful  political 
problem,  that  freemen  know  how  to  appreciate 
equally  the  kindred  privileges  and  duties  of  '  self 
government  and  self  (or  national)  defense,'  privileges 
and  duties  equally  essential  to  the  efficient  mainte- 
nance of  our  Republican  institutions  and  our  na- 
tional independence ;  privileges  and  duties,  in  the 


THE   CONSTITUTION   OF   1834.  123 

vigorous  exercise  and  discharge  of  which,  we  may 
contribute  to  prove  to  a  hitherto  doubting,  and  a 
future  admiring  world,  that  the  freest  and  happiest 
of  republics  may  be,  in  war,  the  most  powerful  and 
invulnerable  of  nations."  *  This  is  the  first,  and  I 
believe  the  shortest  sentence  of  Mr.  Blount's  pre- 
amble. It  is  certainly  entitled  to  the  highest  praise 
for  affluence  of  language.  It  is  probable  that  many 
citizens  of  Tennessee  are  not  aware  of  the  fact  that 
one  of  the  chief  objects  in  the  creation  of  our  sys- 
tem of  public  improvements  was  to  secure  the  priv- 
ilege of  flying  to  the  succor  of  our  sister  States. 
I  do  not  mean  to  speak  lightly  of  Mr.  Blount,  who 
was  a  good  lawyer  and  an  acceptable  Judge,  and 
who  distinguished  himself  more  than  any  of  our 
early  Governors  except  Sevier  and  Carroll.  This 
policy  was  suggested  by  the  most  patriotic  consid- 
erations, but  its  adoption  produced  many  unfortu- 
nate results.f 

*  Journal,  345. 

t  Before  the  Civil  War,  the  State  issued  bonds  in  aid  of  rail- 
roads to  the  amount  of  $14,841,000,  and  at  the  beginning  of  the 
war  its  total  indebtedness,  most  of  which  was  for  public  im- 
provements, was  $20,408,000.  In  1866  and  1867,  bonds  to  the 
extent  of  $14,393,000  were  issued  to  railroads.  At  various 
times  about  $2,000,000  were  issued  in  aid  of  turnpikes  before 
1870.  See  Phelan,  p.  293. 


124  CONSTITUTIONAL     HISTORY. 

Provision  was  made  for  the  appointment  of  a 
Board  of  Commissioners  to  have  the  custody  and 
control  of  public  school  funds.  I  have  shown  that 
from  the  very  beginning  the  people  of  Tennessee 
manifested  a  strong  interest  in  matters  of  educa- 
tion, and  it  will  be  found  that  the  early  legislation 
and  State  papers  abound  in  the  praise  of  education 
and  in  suggestions  in  aid  of  it.  It  was  the  result 
of  many  conditions,  which  I  can  not  properly  dis- 
cuss here,  that  Tennessee  did  not  until  a  compara- 
tively late  period  in  her  history,  have  an  efficient 
public  school  system.  It  maybe  stated  generally  that 
the  public  school  system  really  dates  from  the  year 
1829,  when  an  Act  of  the  Legislature  was  passed 
providing  a  plan  for  the  establishment  of  school  dis- 
tricts in  the  various  Counties.  As  late,  however,  as 
the  year  1837,  a  strong  opposition  was  manifested 
to  the  system  of  entirely  free  schools.  The  Consti- 
tution of  1834  did  not  remedy  the  prime  defect  of 
the  system,  which  was  the  want  of  a  responsible 
head.  Appropriations  had  been  made  by  the  Leg- 
islature and  the  proceeds  of  public  lands  had  been 
devoted  to  educational  purposes,  but  never  until 
1845  were  measures  enacted  that  produced  results 
at  all  satisfactory.  In  that  year  a  law  was  passed 
requiring  the  various  districts  to  tax  themselves 


THE   CONSTITUTION   OF   1834.  125 

for  the  support  of  schools.  This  was  in  effect  a 
partial  adoption  of  the  Township  principle,  and 
the  Township  has  always  been  the  best  friend  of 
the  free  school.  The  history  of  education  in  Ten- 
nessee is  full  of  interest,  but  it  is  not  within  the  scope 
of  this  volume  to  say  more  than  that  the  Constitu- 
tional Convention  of  1834  proved  its  interest  in  the 
subject,  but,  directly  at  least,  did  not  contribute 
materially  to  the  advancement  of  the  cause. 

I  have  now  indicated  the  more  important  changes 
made  in  1834.  The  Constitution  as  formulated  by 
the  Convention  was  adopted  and  remained  in  force 
until  1853,  when  public  sentiment  compelled  cer- 
tain important  modifications.  Amendments  were 
then  adopted  transferring  the  selection  of  all  Judges 
to  the  people ;  fixing  their  term  of  office  at  eight 
years;  making  the  attorneys  for  the  State  and  for 
the  districts  elective  in  the  same  manner,  and  fixing 
their  term  at  six  years.  These  amendments  made 
the  Constitution  democratic  in  all  its  parts.  Pre- 
viously there  had  been  a  declaration  that  all  rights 
belonged  to  the  people,  but  a  reservation  of  impor- 
tant powers  to  the  Legislature,  which  in  my  judg- 
ment belong  of  right  and  in  sound  policy  to  the 
people. 

In  1866,  amendments  were  adopted  to  harmonize 


126  CONSTITUTIONAL   HISTORY. 

the  Constitution  with  the  Federal  Constitution  as 
amended  upon  the  subject  of  slavery.  When  this 
had  been  done,  the  State  had  in  every  essential  re- 
spect the  same  Constitution  that  it  has  now.  To 
this  fact  of  the  substantial  identity  of  the  last  two 
Constitutions  I  shall  return  in  considering  the  Con- 
stitution of  1870. 

Having  shown  the  amendments  which  were  made 
in  1834,  I  wish  now  to  call  attention  more  directly 
to  the  causes  and  the  spirit  of  these  changes.  And 
first  I  notice  the  workings  of  the  Court  system  un- 
der the  Constitution  of  1796,  as  explaining  some  of 
the  changes  made  in  1834.  It  is  surprising  and  not 
at  all  pleasing  to  find  how  very  unsatisfactory  was 
the  conduct  of  Tennessee  Judges  under  the  Consti- 
tution of  1796.  Never,  probably,  in  the  history 
of  the  country  were  so  many  Judges  impeached 
within  so  short  a  time.  The  certain  tenure  of  office 
seems  to  have  been  demoralizing.*  Impeachments 
were  distressingly  frequent,  and  more  than  once 
they  resulted  in  the  conviction  of  a  man  of  the 
highest  reputation.  The  people  rose  in  arms 
against  the  system  and  they  were  fully  justified. 
It  ought  never  to  have  been  adopted ;  it  was  wisely 


*  Phelan,  p.  301. 


THE   CONSTITUTION   OF   1834.  127 

abolished  and  was  the  cause  of  many  of  the  ugliest 
things  in  our  history.  The  Court  system  itself  was 
complicated  and  ill-regulated.  The  County  Court, 
which,  as  constituted  in  Tennessee,  ought  never 
to  have  judicial  powers,  had  concurrent  jurisdiction 
with  the  Circuit  Court  of  many  important  matters, 
and,  indeed,  the  jurisdictional  boundaries  between 
the  County  Court  and  the  Circuit  and  Chancery 
Courts  are  not  even  now  satisfactorily  established. 
If  we  must  continue  to  have  the  County  Court,  it 
ought  at  least  to  be  made  a  purely  administrative 
assembly,  because  it  is  not  properly  constituted, 
nor  in  any  respect  equipped  for  the  trial  of  law 
suits.  "  The  first  judicial  system  in  this  State  for 
the  final  decision  of  causes  was  known  as  the  Dis- 
trict or  Superior  Court  system,  which  went  into 
effect  in  April,  1796,  and  was  composed  of  three 
Judges  until  the  fall  of  1807,  when  another  Judge 
was  added.  This  system  continued  until  the  first 
of  January,  1810,  when  a  Court  of  Errors  and  Ap- 
peals was  established,  consisting  at  first  of  two 
Judges ;  afterward,  in  1815,  increased  to  three 
Judges;  again,  in  1823,  to  four  Judges;  and  in 
1824,  for  a  few  months,  to  five ;  then  reduced  to 
four  again,  which  continued  to  be  the  number  until 
the  Courts  were  reorganized  under  the  Constitution 


128  CONSTITUTIONAL   HISTORY. 

of  1834.  During  the  entire  period,  with  the  ex- 
ception of  the  period  from  1831  to  1834,  and  subse- 
quently under  the  Constitution  of  1834,  the  Judges 
were  of  equal  grade,  without  any  Chief  Justice  or 
presiding  officer.  In  1831,  the  Legislature  created 
the  office  of  Chief  Justice,  and  elected  the  Hon. 
John  Catron,  one  of  the  Justices,  to  that  position. 
By  the  Constitution  of  1834,  the  Court  of  last  re- 
sort was  styled  the  Supreme  Court ;  and  the  desig- 
nation is  repeated  in  the  Constitution  of  1870. 
Under  the  Constitution  of  1834,  the  Court  was 
composed  of  three  Judges.  The  new  Constitution 
of  1870  directs  the  Judges  to  designate  one  of  their 
own  number  who  shall  preside  as  Chief  Justice."  * 
The  Chancery  Court  is  worthy  of  special  atten- 
tion. The  first  Court  established  in  the  Tennessee 
Counties  by  the  State  of  North  Carolina,  was  a 
general  law  and  equity  Court  combined.  It  was 
created  in  1784,  but  in  1787  it  was  divided  and  the 
Chancery  branch  called  the  Court  of  Equity,  and 
a  Clerk  and  Master  appointed  for  each  Equity 
Court,  but  the  same  Judge  continued  to  hold  both 
Courts.  The  Cession  Act  of  1790,  provided  that 
the  laws  of  North  Carolina  should  remain  in  force 


*  Cooper's  edition  1st  Overton  Term.  Rep.,  xi, 


THE    CONSTITUTION   OF   1834.  129 

until  changed  by  Act  of  the  Territorial  Legislature. 
The  first  Act  of  the  Territorial  Legislature  con- 
firmed the  North  Carolina  Act  giving  the  Superior 
Court  equity  jurisdiction.  The  same  Act  con- 
firmed the  division  of  the  Territory  into  the  Wash- 
ington, Hamilton  and  Mero  districts,  but  conferred 
a  separate  Court  of  law  and  equity  jurisdiction 
upon  each  of  them.  When  in  1809,  the  Superior 
Courts  of  law  and  equity  were  abolished,  and  a 
Supreme  Court  of  Errors  and  Appeals  established, 
Circuit  Courts  were  also  created  and  invested  with 
all  the  original  common  law  and  equity  jurisdiction 
of  the  Superior  Court.  In  1811,  the  Supreme 
Court  was  given  "  exclusive  jurisdiction  of  all 
equity  causes  arising  in  the  Circuit  Court."  In 
1813,  Circuit  Judges  were  given  concurrent  juris- 
diction with  the  Supreme  Court  in  equity  causes. 
During  this  time  Circuit  Judges  continued  to  hold 
the  Chancery  Courts,  but  in  1822,  an  Act  was 
passed  providing  that  Chancery  Courts  should  be 
held  by  one  of  the  Supreme  Judges ;  in  1824,  a 
Chancery  Court  to  be  held  twice  a  year,  was  es- 
tablished in  each  Circuit,  and  in  1827,  an  Act  was 
passed  for  the  election  of  two  Chancellors,  to  hold 
all  Chancery  Courts.  The  State  was  divided  into 
two  Districts  and  the  Chancellors  having  jurisdic- 


130  CONSTITUTIONAL   HISTORY. 

tion  throughout  the  State,  were  allowed  to  inter- 
change. The  Sixth  Article  of  the  Constitution  of 
1834  provides  for  Courts  of  Equity,  and  the  first 
Legislature  under  that  Constitution  substantially  re- 
enacted  the  North  Carolina  Act  of  1782,  creating 
Courts  of  Equity ;  and  increased  the  number  of 
Chancellors  to  three.  There  have  been  no  material 
changes  in  the  constitution  of  the  equity  system 
since  that  time,  but  the  number  of  Districts  or  Di- 
visions has  steadily  increased.  I  acknowledge  my 
indebtedness  to  Gibson's  "  Suits  in  Chancery,"  for 
the  facts  stated  in  this  sketch  of  the  Chancery 
Court. 

There  is  nothing  in  the  history  of  the  Circuit 
and  the  County  Courts  that  need  be  recited  here. 
The  general  constitution  of  the  Courts  has 
remained  unaltered,  although  many  changes  of 
jurisdiction  have  been  made  by  statute.  The  Cir- 
cuit Courts  have  all  the  powers  of  the  English 
Court  of  King's  Bench  in  criminal  cases,  and  also 
general  jurisdiction  of  all  cases  at  law.  The  ques- 
tion of  jurisdiction  under  the  old  Constitution  con- 
stantly gave  trouble.  Chancery  Courts  and  County 
Courts  were  continually  in  conflict,  and  no  man 
could  say  with  certainty  where  the  boundary  was 
between  the  Circuit  and  Chancery  Courts  on  one 


THE    CONSTITUTION   OF   1834.  131 

side  and  the  Supreme  Court  on  the  other.  The  re- 
sult was  unbounded  confusion,  multiplicity  of  suits, 
ruinous  costs,  interminable  appeals  and  delays.  A 
committee  of  the  State  Senate  declared  in  1829 
that  the  system  was  the  most  expensive  and  the 
least  efficient  in  the  United  States. 

From  this  brief  statement  it  will  be  seen 
that  under  the  Constitution  of  1796,  the  jurisdic- 
tions of  the  various  Courts  were  inextricably  con- 
fused. Of  this  there  was  much  well  grounded 
complaint,  and  if  the  Constitution  of  1834  did  not 
cure  the  evil  entirely,  it  greatly  simplified  and  im- 
proved the  system.  There  are  many  changes  yet 
to  be  made,  but  the  Convention  of  1834  is  to  be 
commended  for  its  work  in  this  department. 

There  has  been  no  more  thoughtful  and  no  fairer 
student  of  American  institutions  than  Woodrow 
Wilson.  In  his  book,  "  Division  and  Reunion,"  he 
has  shown  happily  and  clearly  the  change  of  polit- 
ical life  which  this  country  experienced  early  in  the 
second  quarter  of  the  present  century.  He  says : 
"  The  Colonial  States  were,  of  course,  a  bit  raw  and 
callow  as  compared  with  the  seasoned  growths  of 
European  history;  but  even  they  had  acquired 
some  of  the  mellowness  and  sedateness  of  age. 
The  new  States,  on  the  other  hand,  which  came 


132  CONSTITUTIONAL   HISTORY. 

rapidly  into  being  after  the  Revolution,  were  at  a 
much  greater  remove  from  old  tradition  and  settled 
habit,  and  were  in  direct  contact  with  difficulties 
such  as  breed  strength  and  a  bold  spirit  of  innova- 
tion. They  brought  into  our  national  life  a  sort  of 
frontier  self-assertion  which  quickly  told  upon  our 
politics,  shaking  the  Government  out  of  its  old 
sobriety,  and  adding  a  spice  of  daring  personal  in- 
itiative. .  '.  .  The  inauguration  of  Jackson 
brought  a  new  class  of  men  into  leadership,  and 
marks  the  beginning,  for  good  or  for  ill,  of  a  dis- 
tinctively American  order  of  politics  begotten  of 
the  crude  forces  of  a  new  nationality.  A  change 
of  political  weather,  long  preparing,  had  finally  set 
in.  The  new  generation  which  asserted  itself  in 
Jackson  was  not  in  the  least  regardful  of  conserva- 
tive tradition.  It  had  no  taint  of  antiquity  about 
it.  It  was  distinctively  new  and  buoyantly  ex- 
pectant." * 

In  the  establishment  of  this  "  new  order  of  poli- 
tics," Tennessee  had  an  important  part.  Andrew 
Jackson,  in  whose  election  to  the  Presidency  the 
new  sentiment  triumphed  for  the  first  time,  was  a 
Tennessean,  and  was  a  faithful  representative,  a 

*  Division  and  Reunion,  pp.  10,  11. 


THE    CONSTITUTION   OF    1834.  133 

natural  product,  of  the  political  and  social  condi- 
tions which  prevailed  in  this  State.  The  Conven- 
tion of  1834  was  demanded  and  its  conduct  dic- 
tated by  this  sentiment.  A  wave  of  democratic 
reform  was  sweeping  over  the  country ;  the  people 
had  become  conscious  of  their  rights.  It  was  in 
the  Western  communities  like  Tennessee,  which 
had  never  in  fact  been  under  British  dominion, 
that  the  new  spirit  was  first  and  most  strongly  de- 
veloped. And  in  this  connection  I  think  it  is  true 
that  the  most  important  and  salutary  of  the  im- 
provements in  institutions  and  in  methods  that  have 
been  made  in  this  country  have  originated  in  the 
Western  States.  Not  because  the  people  are  more 
intelligent,  but  because  they  are  more  independent, 
and  are  not  trammeled  by  traditions  nor  prece- 
dents. It  is  certain,  for  instance,  that  the  science 
of  municipal  government  is  greatly  indebted  to  the 
progressiveness  of  the  Western  cities,  and  the 
Western  and  North-western  States  have  led  the 
way  to  many  important  and  beneficial  changes 
from  the  harsh  and  rigid  common  law. 

It  is  interesting  and  instructive  to  examine  the 
Constitutions  of  the  States  and  to  see  how  many 
Constitutions  and  how  many  important  amend- 
ments, all  democratic  in  tendency,  were  made  be- 


134  CONSTITUTIONAL    HISTORY. 

tween  1830  and  1850.  South  Carolina,  New  Jersey, 
and  a  few  others  were  faithful  to  the  old  system, 
but  in  a  great  majority  of  the  States,  constitutional 
changes  signalize  the  growth  of  democracy,  the  ap- 
pearance of  the  "  new  order  of  politics." 

The  co-ordination  of  the  Executive,  Legislative, 
and  Judicial  departments  was  accomplished  for  the. 
first  time  in  several  States  by  these  amendments. 

In  Tennessee,  the  foremost  champion  of  the  new 
order  was  Governor  William  Carroll,  who,  in  in- 
telligence, independence,  and  valuable  service,  has 
hardly  been  surpassed  by  any  Governor  of  the 
State.  He  lived  in  the  time  of  Jackson,  whose 
largeness  filled  the  public  eye.  The  excessive 
reputation  of  Andrew  Jackson  continues  to  ob- 
scure many  able  and  worthy  men  whose  names  will 
stand  high  in  the  fair  and  just  history  which  re- 
mains to  be  written. 

Among  the  more  important  and  interesting  sub- 
jects that  were  considered  by  the  Convention  of 
1834  was  Emancipation.  It  must  be  borne  in  mind 
that  in  1834,  Slavery  had  not  become  an  active 
political  question.  The  Anti-Slavery  Society  had 
been  organized  in  the  East  for  a  few  years,  and 
Colonization  Societies  in  several  States  for  about 
twenty  years,  but  the  tremendous  movement  which 


THE   CONSTITUTION   OF  1834.  135 

was  to  shake  the  Republic  to  its  foundations  was 
not  fairly  begun.  There  had  been  no  definite 
movement  of  serious  import  against  Slavery  in  Ten- 
nessee. In  Middle  and  West  Tennessee,  there  were 
many  opulent  slave-holders,  but  in  East  Tennessee 
very  few.  There  is  much  interesting  personal  and 
Church  history  connected  with  this  subject,  but 
my  attention  must  be  confined  to  the  doings  of  the 
Convention. 

The  first  mention  of  the  subject  was  on  Saturday, 
the  24th  of  May,  when  Mr.  Cahal  introduced  the 
petition  of  sundry  citizens  of  Maury  County  on  the 
subject  of  Emancipation.*  From  that  time  forward 
the  proceedings  of  the  Convention  abound  in  refer- 
ences to  it.  On  the  30th  of  May,  Mr.  Stephenson, 
of  "Washington  County,  moved :  "  That  a  Com- 
mittee of  thirteen,  one  from  each  Congressional  dis- 
trict, be  appointed  to  take  into  consideration  the 
propriety  of  designating  some  period  from  which 
slavery  shall  not  be  tolerated  in  this  State ;  and  that 
all  memorials  on  that  subject  that  have  or  may  be 
presented  to  the  Convention,  be  referred  to  said 
Committee  to  consider  and  report  thereon."  On 
the  19th  of  June,  the  Committee,  which  had  been 


*  Journal  of  the  Convention,  p.  26. 


136  CONSTITUTIONAL   HISTORY. 

appointed  pursuant  to  Stephenson's  resolution, 
presented  a  long  and  elaborate  report  which  is 
signed  by  John  A.  McKinney,  Chairman.  This 
report  covers  more  than  six  closely  printed  pages. 
In  the  beginning,  it  is  in  effect  a  severe  arraign- 
ment of  slavery.  It  declares :  "  The  Committee 
does  not  understand  the  Convention  as  denying  the 
truth  of  the  proposition  which  asserts  that  Slavery  is 
an  evil ;  to  prove  it  to  be  a  great  evil  is  an  easy  task,  but 
to  tell  how  that  evil  may  be  removed  is  a  question 
that  the  wisest  heads  and  most  benevolent  hearts 
have  not  been  able  to  answer  in  a  satisfactory  man- 
ner." A  subsequent  sentence  admits  that  "  fleecy 
locks  and  black  complexion  mark  every  one  of  the 
African  race  so  long  as  he  remains  among  white 
men,  as  a  person  doomed  to  dwell  in  the  suburbs 
of  society."  Again  it  is  said :  "  But  the  friends 
of  humanity  need  not  despair;  the  memorialists 
need  not  dread  that  Slavery  will  be  perpetual  in 
our  highly  favored  country ;  Providence  has  already 
opened  the  door  of  hope,  which  is  every  day  open- 
ing wider  and  wider.  On  the  coast  of  Africa  the 
foundation  of  a  mighty  empire  is  already  laid,  and 
thither  the  sons  and  daughters  of  Africa,  made  free 
by  the  sons  of  their  masters  and  transported  by 
funds  furnished  by  the  benevolent,  shall  repair,  and 


THE    CONSTITUTION    OF    1834.  137 

carrying  with  them  the  blessings  of  civilization  and 
the  truths  and  consolations  of  Christianity,  they 
will,  in  process  of  time,  banish  idolatry,  ignorance, 
and  superstition  from  that  wretched  land  which  has 
so  long  been  the  habitation  of  horrid  cruelties." 
The  concluding  sentence  of  the  report  is  as  follows  : 
"So  a  premature  attempt  on  the  part  of  the 
benevolent  to  get  rid  of  the  evils  of  Slavery  would 
certainly  have  the  effect  of  postponing  to  a  far  dis- 
tant day  the  accomplishment  of  an  event  devoutly 
and  ardently  desired  by  the  wise  and  good  in  every 
part  of  our  beloved  country."  * 

But  while  the  report  abounds  in  expressions  like 
those  which  have  been  quoted,  denouncing  slavery 
in  the  strongest  terms,  it  advises  against  interfer- 
ence with  the  institution  on  the  ground  of  inex- 
pediency, and  of  the  injury  which  it  is  said  would 
necessarily  result  to  the  negroes.  It  would  be  im- 
possible to  believe  that  sentiments  so  antagonistic 
to  slavery  were  uttered  in  this  Convention  if  we 
were  unmindful  of  the  fact  that  the  agitation  of 
the  subject  in  politics  had  not  yet  begun,  and  that 
there  had  been  no  incentive  to  find^  arguments 
in  support  of  the  institution.  When  this  report 

*  Journal,  pp.  87-93, 


138  CONSTITUTIONAL   HISTORY. 

was  put  to  the  vote,  it  was  carried  by  forty-four 
against  ten,  and  if  this  was  a  declaration  that  ac- 
tion upon  the  subject  was  inexpedient,  it  was  not 
less  an  approval  of  the  anti-slavery  sentiments 
which  make  up  so  large  a  part  of  the  report. 
Among  those  who  voted  against  the  resolution 
were  Robert  J.  McKinney,  who  represented  Greene 
County,  and  Joseph  A.  Mabry,  who  represented 
Knox  County.  Soon  after  the  adoption  of  this  re- 
port, Messrs.  Stephenson,  McGaughey,  Bradshaw 
and  Gillespie,  all  from  East  Tennessee,  presented  a 
protest  against  it,  in  which  they  declared  it  to  be 
"  at  variance  with  the  spirit  of  the  Gospel,"  and  "  a 
kind  of  apology  for  slavery."  * 

There  is  no  room  to  doubt  that  as  an  original 
proposition  the  sentiment  of  the  Convention  was 
strongly  opposed  to  slavery.  The  popular  ex- 
pression which  gave  the  Convention  so  much 
trouble,  was  not  at  all  general,  and  the  number 
directly  represented  by  it  was  insignificant.  Chair- 
man McKinney  resenting  the  strictures  of  the  pro- 
test above  referred  to,  made  an  additional  report 
at  a  later  day  wherein  he  vigorously  defends  his 
committee  and  reargues  the  question.  It  is  stated 

*  Journal,  p.  104. 


THE   CONSTITUTION   OF   1834.  139 

that  the  memorials  upon  the  subject  of  emancipa- 
tion had  been  presented  by  the  following  Counties : 
Washington,  Greene,  Jefferson,  Cocke,  Sevier, 
Blount,  McMinn,  Monroe,  Knox,  Rhea,  Roaue, 
Overtoil,  Bedford,  Lincoln,  Maury  and  Robertson. 
The  number  of  signers  in  Washington  County  was 
273,  in  Greene  378,  in  Maury  33,  in  Overtoil  67,  in 
Robertson  24,  in  Lincoln  105,  in  Bedford  139. 
The  signers  of  each  of  the  remaining  petitions 
represented  more  than  one  County,  so  that  no 
distinction  could  be  made.  The  total  number  of 
signatures  was  1,804,  of  whom  105  declared  them- 
selves slave-holders,  but  it  is  possible  there  were 
other  slave-holders  who  did  not  so  designate  them- 
selves.* It  will  be  noticed  that  the  petitioning 
Counties  are  sixteen  in  number;  eleven  in  East 
Tennessee  and  five  in  Middle  Tennessee.  It  is 
obvious  that  there  was  nothing  of  the  nature  of  a 
popular  uprising,  and  no  demand  of  sufficient  pro- 
portions to  impress  itself  strongly  upon  the  Con- 
vention, therefore,  the  sentiment  of  the  Convention 
against  slavery  must  have  existed  in  the  minds  of 
the  members  without  regard  to  these  memorials. 
A  few  years  later,  mention  of  the  subject  in  such  a 

*  Journal,  p.  125. 


140  CONSTITUTIONAL    HISTORY. 

forum  would  have  provoked  the  bitterest  contro- 
versy, and  opinions  such  as  were  expressed  in  the 
report  could  not  have  hoped  for  indorsement. 
The  plans  proposed  by  the  memorials  are  interest- 
ing. It  appears  that  Washington  County  alone 
did  not  submit  a  definite  plan.  The  committee 
states  that  of  the  remaining  thirty  petitions,  about 
one-half  asked  that  all  the  children  of  slaves  in  this 
State,  born  after  the  year  1835,  be  made  free,  and  that 
all  the  slaves  be  made  free  in  1855,  and  that  they  be 
sent  out  of  the  State.  The  others  request  that 
all  slaves  be  made  free  by  1866,  and  that  they  be 
colonized.  There  were  forty-six  Counties  from 
which  no  memorials  were  presented.*  In  addition 
to  those  to  which  I  have  referred,  there  were  many 
other  discussions  of  the  subject  in  the  Convention, 
but  no  other  facts  of  particular  interest  were  de- 
veloped. 

Many  suggestions  were  made  in  the  Convention 
that  were  not  adopted,  but  are  interesting  as  indi- 
cating at  least  a  limited  public  opinion.  It  was 
proposed  that  men  eighteen  years  of  age  be  allowed 
to  vote ;  that  voting  be  viva  voce;  that  drunkenness 
be  a  disqualification  for  office ;  that  corporations 

*  Journal,  p.  126, 


THE   CONSTITUTION   OF   1834.  141 

be  prohibited  as  dangerous  to  the  liberties  of  the 
people  ;  that  there  be  a  Lieutenant-Governor. 

A  unique  undertaking,  worthy  of  special  men- 
tion, was  that  of  ascertaining  what  one  delegate 
called  the  "  center  of  gravity  "  of  the  State.  The 
exact  ascertainment  of  this  important  fact  was  de- 
sired for  the  purpose  of  locating  the  Capital.  There 
was  much  contention  for  the  Capital  among  the 
larger  towns  of  Middle  Tennessee,  and  nearly  all 
from  McMinnville  westward  were  proposed.  The 
Convention  gracefully  evaded  the  question,  but  for 
a  time  it  indicated  some  disposition  to  solve  it  by 
putting  the  Capitol  on  the  center  of  gravity,  re- 
gardless of  other  considerations.  It  is  proper  to 
state  that  a  learned  professor  of  mathematics  found 
the  geographical  center  of  the  State  to  be  a  mile 
and  a  half  east  of  Murfreesboro.  The  report  de- 
clares that  the  "  center  of  position  and  the  center 
of  gravity  are  necessarily  the  same."  * 

In  the  chapter  on  Franklin,  I  called  attention  to 
the  queer  provision  of  the  rejected  Houston  Con- 
stitution creating  a  Council  of  State,  which  was  to 
be  elected  every  fifth  year,  to  sit  during  one  year, 
and  to  have  practically  absolute  power.  Its  special 

*  Journal,  p.  62. 


142  CONSTITUTIONAL   HISTORY. 

duty  was  to  be  to  inquire  whether  or  not  the  Con- 
stitution had  been  preserved.  ^A  proposition  al- 
most identical  with  this  was  presented  to  the  Con- 
vention of  1834,  by  Willie  Blount,  but  was  wisely 
rejected.  It  is  plain  from  the  wording  of  Blount's 
paper  that  he  expected  this  high  and  extraordinary 
tribunal  to  have  onerous  duties  in  the  way  of  im- 
peaching State  officials,  an  expectation  which  was 
justified  by  the  unfortunate  history  of  the  judiciary. 

The  feeling  against  lawyers  had  not  yet  sub- 
sided. The  people  did  not  understand  then,  and 
do  not  understand  now,  the  indisputable  fact 
that  there  is  no  calling  in  which  labor  brings  such 
small  returns  as  the  lawyer's.  Mr.  Hodges,  of 
Jefferson  County,  introduced  the  following  resolu- 
tion, which  was  not  adopted,  to  wit :  "  That  lawyers 
do  the  business  of  the  Justices  of  the  different 
Counties,  gratis,  as  they  are  more  capable  to  do 
this  business.  The  fee  of  lawyers  as  it  is,  is  plenty 
high  to  do  all  those  duties."  * 

The  attempt  to  insert  into  the  constitutional  oath 
of  office  a  statement  that  the  affiant  had  not  di- 
rectly nor  indirectly  given  ardent  spirits  to  electors 
for  their  support,  proves  that  the  methods  of  poli- 
ticians were  not  immaculate  even  in  those  days. 

*  Journal,  p.  i2s(>. 


THE   CONSTITUTION   OF   1834.  143 

In  conclusion,  upon  this  subject  I  wish  to  say 
that  the  Constitution  of  1834,  is  the  only  Constitu- 
tion that  the  people  of  Tennessee  ever  have  made. 
It  is  the  only  one  of  the  three  State  Constitutions 
that  was  the  product  of  conditions  existing  in  the 
State  at  the  time  when  it  was  enacted.  I  have  said 
that  the  Constitution  of  1796  was  the  outgrowth  of 
the  conditions  of  that  time,  but  it  was  not  a  product 
of  the  State  life.  The  conditions  to  which  I  re- 
ferred were  the  general  conditions  of  this  country. 
Tennessee  had  then  no  individuality.  The  people 
were  gathered  from  all  quarters,  and  while  they 
were  exceptionally  homogeneous,  they  were  all  new 
comers,  and  their  undertaking  was  an  experiment. 
In  1834,  the  State  as  a  distinct  political  and  social 
entity,  had  existed  for  forty  years.  It  had  estab- 
lished an  individuality,  it  had  developed  distinctive 
characteristics,  and  these  were  embodied  in  the 
Constitution  of  1834.  A  process  of  social  and 
political  evolution  had  been  going  on  through  these 
four  decades,  and  its  results  appear  in  the  new  Con- 
stitution. That  instrument  faithfully  represented 
the  conditions  and  opinions  of  the  State  at  the  time 
when  it  was  adopted,  and  it  was  in  almost  every 
respect,  excellent.  It  was  what  the  people  de- 
manded and  what  they  needed.  The  most  serious 


144  CONSTITUTIONAL   HISTORY. 

objection  to  it  is  that  it  was  too  long  and  descended 
too  much  into  details.  If  its  tax  provisions  are 
unjust  and  injurious  now,  it  is  because  we  have  re- 
tained them  despite  radical  changes  of  condition. 

-I  shall  endeavor  to  show  that  the  Constitution  of 
1870,  is  not  entitled  to  the  same  praise. 

It  is  singular  that  while  the  Conventions  of 
1796  and  1870  contained  each  a  large  number  of 
men  who  are  prominent  in  State  history,  the  Con- 
vention of  1834  had  comparatively  few.  Among 
the  more  prominent  members  are :  William  B. 
Carter,*  the  president,  Robert  J.  McKinney,  Francis 
B.  Fogg,  Robert  Weakley,  Newton  Cannon,  West  H. 
Humphreys  and  Willie  Blount.  In  the  ordinance 
passed  by  the  Convention,  calling  for  a  vote  upon 
the  new  Constitution,  it  was  provided  that  no  one 
should  vote  except  such  as  were  included  in  the 
first  section  of  the  fourth  article  as  amended.  The 
effect  of  this  was  to  disfranchise  free  negroes  before 
the  adoption  of  the  new  Constitution.  The  free  ne- 
groes would  have  opposed  the  Constitution.  The 
scheme  was  original,  practical,  and  effective. 

*  William  B.  Carter,  the  President  of  the  Convention,  was  a 
grandson  of  John  Carter,  the  Watauga  leader.  Intellectually 
and  physically,  he  was  one  of  the  striking  figures  of  the  time 
in  Tennessee.  He  served  acceptably  in  Congress  for  three 
terms,  and  held  with  credit,  other  positions  of  honor  and  trust. 


JOHN   C.  BROWN, 

President  of  Convention  of  1870. 


THE   CONSTITUTION   OF   1870.  145 


CHAPTER  VI. 

THE  CONSTITUTION  OF  1870. 

1870-1895. 

I  have  said  that  the  Constitution  of  1834  was  a 
natural  product  of  the  political  and  social  conditions 
existing  in  the  State  at  the  time  of  its  adoption, 
and  that  this  was  not  true  of  the  Constitution  of 
1870. 

In  1796,  Tennessee  was  a  frontier  community ; 
in  1834  it  was  a  purely  agricultural  State,  but  with 
a  population  increased  tenfold  and  a'  society  much 
more  highly  organized.  Its  commercial  relations 
were  rapidly  expanding,  there  was  a  growing  sense 
of  the  importance  of  developing  the  material  re- 
sources of  the  State,  and  there  were  faint  begin- 
nings of  manufacture.  But  it  was  essentially  an 
agricultural  society  without  railroads  and  without 
large  cities. 

To  the  needs  of  such  a  community,  the  Constitu- 
tion of  1834  was  admirably  adapted.  Between 
1834  and  1861,  the  progress  of  the  State  was 


146  CONSTITUTIONAL   HISTORY. 

steady  but  not  rapid,  and  when  the  Civil  War  be- 
gan, society  had  not  outgrown  the  Constitution. 

The  war  resulted  in  a  tremendous  destruction  of 
values,  and  in  the  complete  overthrow  of  the  in- 
dustrial system. 

In  1870,  the  old  system  had  been  swept  away, 
and  the  new  one  had  not  been  fairly  established. 
The  people  were  impoverished,  helpless,  despair- 
ing. The  future  was  inscrutable  and  threatening. 

The  Constitution  of  1834  had,  in  1866,  been 
amended  so  as  to  conform  to  the  amendments  of 
the  Federal  Constitution  on  the  subject  of  slavery, 
and  it  was  apparent  to  thoughtful  men  of  that  time 
that  it  was  impossible  for  human  wisdom,  under 
existing  circumstances,  to  construct  a  Constitution 
which  would  long  suffice  under  the  new  order  of 
affairs. 

Nevertheless,  we  find  a  Constitutional  Convention 
assembling  in  1870,  while  the  drastic  Federal  policy 
of  reconstruction  was  still  in  operation  in  most  of 
the  Southern  States,  and  in  this  body  were  many 
of  the  most  thoughtful,  capable  and  conservative 
men  of  the  State. 

We  will  readily  believe  that  such  men  thought  it 
best  to  make  as  few  changes  as  possible  in  the 
organic  law,  preferring  that  the  new  order  should 


THE   CONSTITUTION   OF    1870.  147 

first  be  developed,  and  then  the  Constitution  re- 
shaped and  adapted  to  it.  The  essential  differences 
between  the  Constitutions  of  1834  and  1870,  are  few 
and  unimportant. 

Why  then  was  the  Convention  called  at  a  time 
when  it  was  indisputably  the  wisest  policy  to  await 
developments,  and  when  the  great  fact  of  the 
abolition  of  slavery  had  already  been  provided  for 
by  amendment  of  the  old  Constitution  ? 

The  truth  is  that  the  Convention  was  a  political 
expedient,  designed  to  restore  to  citizenship  and 
to  the  mastery  of  affairs,  the  majority  of  the  white 
voters  of  the  State,  who  had  been  disfranchised  by 
by  a  minority  party  which  the  war  had  placed  in 
power.  If  certain  minor  constitutional  changes 
were  advocated,  the  wish  to  secure  them  was  not 
an  important  factor  in  promoting  the  Convention. 

The  disfranchised  citizens  availed  themselves  of 
the  ambitions  of  opposing  leaders,  whose  fortunes 
were  declining,  and  thus  enfranchised  themselves. 

The  Convention  of  1870  was  composed  of  strong 
men.  It  was  probably  the  most  intellectual  body 
that  ever  was  elected  in  Tennessee,  for  any  pur- 
pose. The  President,  John  C.  Brown,  was  a  man 
whose  abilities  were  of  a  high  order  and  who  de- 
serves a  larger  place  in  our  history  than  has  been 


148  CONSTITUTIONAL   HISTORY. 

accorded  him.  The  venerable  Neill  S.  Brown 
brought  to  the  deliberations  of  the  Convention  a 
high  intelligence,  spotless  character  and  ripe  ex- 
perience. James  D.  Porter  has  in  many  capacities 
proved  himself  one  of  the  purest  and  best  of  our 
public  men.  John  Netherland  was  a  man  of  de- 
served note  in  two  generations  of  strong  lawyers. 
John  Baxter  possessed  extraordinary  force  of  in- 
tellect and  of  character,  was  a  lawyer  of  the  high- 
est standing  and  a  born  leader  of  men.  G-eorge 
"W.  Jones  had  been  one  of  the  first  citizens  of  the 
State  for  many  years  and  had  won  distinction  as  a 
member  of  Congress.  William  H.  Stephens  and 
Joseph  B.  Heiskell  represented  Shelby  County,  and 
were  men  of  exceptional  ability  and  learning. 
John  F.  House,  of  Montgomery  County,  has  long 
been  recognized  as  one  of  the  ablest  men  in  Ten- 
nessee, and  it  is  to  be  regretted  that  indifference 
to  public  honors  has  deprived  the  people  of  his 
services.  Judge  David  M.  Key  has  won  distinction 
as  a  lawyer,  as  a  Judge,  as  a  Senator  and  as  Post- 
master-General of  the  United  States.  Probably 
the  most  distinguished  delegate  was  A.  0.  P. 
Nicholson.  This  venerable  and  admirable  man  is 
one  of  the  finest  figures  in  our  history.  His  intel- 
lect was  commanding,  and  wherever  he  went  he 


THE    CONSTITUTION   OF   1870.  149 

was  the  peer  of  the  foremost.  His  character  was 
the  purest  and  his  personality  was  infinitely  at- 
tractive. His  wise  conservatism  was  invaluable  to 
the  Convention.  Not  to  make  the  list  too  long  I 
mention  as  other  conspicuous  members,  W.  H. 
Williamson,  George  E.  Seay,  J.  J.  Turner,  H.  R. 
Gibson,  W.  B.  Staley,  John  W.  Burton,  A.  Bliz- 
zard, George  G.  Dibbrell,  Sparrel  Hill,  Alex.  W. 
Campbell,  James  Fentress,  Thomas  M.  Jones  and 
John  A.  Gardner.  All  of  these  have  been  promi- 
nent in  public  affairs.  There  was  hardly  a  member 
of  the  Convention  who  was  not  of  more  than 
average  ability. 

While  the  Convention  was  ostensibly  charged 
with  the  duty  of  reforming  the  Constitution,  its 
members  were  fully  aware  that  the  real  purpose  of 
their  assembling  was  very  different.  The  leaders, 
at  least,  were  wise  enough  to  know  that  even  if  the 
object  of  the  Convention  had  been  a  revision  of  the 
Constitution,  the  wisest  policy  was  to  do  as  little 
as  possible.  They  realized  that  they  were  at  the 
beginning  of  a  new  era  ;  that  the  near  future  must 
bring  many  changes  which  they  could  not  provide 
for  nor  foresee. 

The  sentiment  and  purposes  of  the  dominant 
element  were  frankly  spoken  by  the  venerable 


150  CONSTITUTIONAL   HISTORY. 

Judge  Nicholson,  who  again  and  again  said  in 
effect,  to  those  who  were  inclined  to  experiment  or 
to  be  extreme  :  "  Let  us  be  careful ;  let  us  do  no 
more  than  is  absolutely  necessary.  In  ten  years 
all  this  must  be  done  again."* 

There  were  hot  heads  and  men  with  pet  theories 
in  the  Convention,  but  the  conservative  majority 
adopted  and  adhered  to  the  policy  declared  by 
Judge  Nicholson. 

There  was  another  reason  for  being  cautious. 
The  Convention  owed  its  existence  to  a  stroke 
of  political  policy  which  was  little  less  than 
audacious.  The  political  party  whose  supremacy 
was  to  be  destroyed  by  the  new  Constitution,  was 
naturally  unfriendly  to  the  Convention.  The 
Federal  Government  was  exercising,  throughout 
the  South,  the  most  extraordinary  powers,  and  its 
agents  kept  vigilant  watch  upon  the  proceedings. 
The  slightest  imprudence  might  have  brought  the 
soldiery  into  the  hall  of  the  Convention.  The 
members  are  fond  of  saying  that  they  worked  with 

*  I  quote  Judge  Nicholson  on  the  authority  and  with  the  per- 
mission of  his  son,  Major  Hunter  Nicholson.  Congressman 
Henry  R.  Gibson,  a  prominent  Republican  member  of  the 
Convention,  confirms  my  statement,  and  says  that  at  first  it 
was  expected  that  the  Convention  would  not  be  in  session 
more  than  ten  days. 


THE   CONSTITUTION   OF   1870.  151 

the  "  Sword  of  Damocles "  constantly  suspended 
over  them. 

The  gravest  difficulty,  probably,  was  in  adjusting 
the  suffrage.  The  Chairmanship  of  the  Committee 
on  Elections  and  the  Right  of  Suffrage  was  as- 
signed to  Judge  Nicholson,  in  whose  prudence  and 
wisdom  the  Convention  had  great  confidence.  The 
result  reached  was  the  virtual  re-enactment  of  the 
provisions  of  the  old  Constitution,  with  the  addi- 
tion of  the  poll-tax  qualification  which  played  so 
large  a  part  in  the  election  of  1894. 

The  way  to.  this  conclusion  lay  through  much 
strenuous  debate  and  many  conflicting  and  fervid 
resolutions  and  protests.  The  Journal  shows  many 
rejected  resolves,  asserting  the  superiority  of  the 
white  man  and  his  right  of  supremacy,  but  the 
conservatives  were  wisely  steadfast  in  favor  of  ad- 
mitting the  negro  to  equal  rights.  There  was 
hardly  a  moment  when  the  Convention  was  free 
from  apprehension  that  indiscreet  utterances  on 
this  subject  might  provoke  the  intervention  of  the 
Federal  authorities. 

But  while  this  was  difficult,  and,  under  the  cir- 
cumstances, dangerous  work,  the  result  was,  prac- 
tically, to  leave  the  suffrage  as  it  had  been  before. 
A  strange  spectacle  was  presented  when  the  ex- 


152  CONSTITUTIONAL   HISTORY. 

treme  Southern  men,  who  were  expected  to  be  the 
most  uncompromising  advocates  of  white  suprem- 
acy, took  the  floor  in  support  of  provisions  which 
necessarily  conferred  the  suffrage  upon  negroes. 

The  policy  was  wise.  Indeed,  no  other  course 
was  open.  The  restrictive  measures  which  were 
proposed  would  certainly  have  defeated  the  pur- 
poses of  the  Convention. 

j  Among  the  more  important  changes  of  the  Con- 
stitution made  by  the  Convention  may  be  mentioned 
the  granting  of  a  qualified  veto  power  to  the  Gov- 
ernor. It  is  not  an  effective  veto,  because  a  bill  may 
be  passed  over  it  by  a  bare  majority.  The  home- 
stead exemption  was  created,  provisions  were  in- 
serted denying  the  State  the  right  to  give  aid  to 
public  enterprises,  and  the  Legislature  was  directed 
to  enact  general  laws  for  the  organization  of  cor- 
porations. This  last  was  a  very  important  and  a 
very  wise  measure. 

I  state  generally  what  the  remaining  noteworthy 
changes  were,  with  the  purpose  of  showing  that  in 
the  main  they  were  comparatively  unimportant, 
and  it  is  respectfully  submitted  that  many  of  them 
deal  with  matters  which  are  proper  subjects  of 
legislation,  and  not  of  constitutional  regulation. 

Where  the  Declaration  of  Rights  in  1834  pro- 


THE    CONSTITUTION   OF    1870.  153 

hibits  a  religious  test  as  a  qualification  for  office, 
the  new  Constitution  adds  that  there  shall  be  no 
political  test ;  it  unnecessarily  elongates  the  fifth 
section ;  wisely  amends  the  fifteenth  by  requiring 
action  of  the  Legislature  for  suspension  of  the  writ 
of  habeas  corpus ;  provides  for  the  humane  treat- 
ment of  prisoners  and  prohibits  slavery. 

Article  II  fixes  the  term  of  members  of  the  Leg- 
islature ;  regulates  the  time  of  elections ;  provides 
that  no  bill  shall  become  a  law  which  embraces 
more  than  one  subject ;  that  repealing,  amending, 
and  reviving  acts  shall  recite,  in  the  caption,  the 
substance  of  the  repealed,  revived,  or  amended  act; 
that  general  laws  shall  not  take  effect  until  forty 
days  after  passage,  unless  otherwise  expressed 
therein ;  sliglitly  changes  the  form  of  tax  pro- 
visions, and  elongates  them  by  clauses  taxing  the 
capital  of  merchants,  authorizing  an  income  tax, 
and  fixing  the  limit  of  the  poll-tax;  prescribes  how 
counties  and  cities  shall  lend  credit ;  prohibits  the 
State  from  lending  aid,  or  becoming  owner  or 
stockholder  in  any  association  or  corporation,  and 
declares  that  no  Convention  or  General  Assembly 
shall  act  upon  an  amendment  of  the  Constitution 
of  the  United  States,  unless  such  Convention  or 


154  CONSTITUTIONAL   HISTORY. 

General  Assembly  shall  have  been  elected  after  the 
submission  of  the  amendment. 

Article  III  declares  that  the  militia  shall  not  be 
called  into  service  except  in  cases  of  rebellion  or 
invasion,  and  then  only  when  the  General  Assem- 
bly shall  declare,  by  law,  that  the  public  safety  re- 
quires it.  This  apprehensive  provision,  in  conjunc- 
tion with  the  Coal  Creek  riots  of  1892,  necessitated 
the  creation  of  the  Army  of  Tennessee.  A  long 
section  in  the  same  article  regulates  the  signing  and 
approving  of  bills  by  the  Governor. 

Article  IV  contains  new  provisions  in  regard  to 
the  payment  of  poll-tax  as  a  condition  to  voting. 

Article  Y  provides  that  the  Chief  Justice  shall 
preside  in  the  Senate  during  impeachment  trials. 

Article  VI  adds  a  clause  authorizing  Courts  to 
be  holden  by  Justices  of  the  Peace,  increases  the 
number  of  Supreme  Judges  to  five,  provides  for  the 
appointment  of  a  Chief  Justice,  contains  unim- 
portant amendments  as  to  the  election  and  ages 
of  Judges,  changes  the  term  of  the  Attorney-Gen- 
eral from  six  to  eight  years,  provides  that  he  be 
selected  by  the  Supreme  Court,  and  makes  the  Cir- 
cuit and  Chancery  Courts  constitutional  Courts. 

Article  VII  regulates  the  terms  of  officers  and 
makes  the  Comptroller  a  constitutional  officer. 


THE    CONSTITUTION    OF   1870.  155 

Article  X  fixes  the  area  of  new  Counties,  adds  a 
multitude  of  local  provisions  of  no  importance,  and 
declares  the  liability  of  new  Counties  for  debts  of 
the  old  Counties. 

Article  XI  provides  for  Constitutional  Conven- 
tions, for  a  conventional  rate  of  interest,  declares 
that  white  and  negro  children  shall  not  be  received 
in  the  same  school,  authorizes  game  and  fish  laws, 
forbids  the  intermarriage  of  whites  and  negroes, 
and  declares  that  no  County  office  created  by  the 
Legislature  shall  be  filled  otherwise  than  by  the 
people  or  by  the  County  Court. 

These  are  not  all  the  changes,  though  very  few  are 
omitted. 

Many  of  these  changes  are  lawyers'  comments  on 
the  original  text,  critical  or  explanatory  notes  in- 
serted into  the  body  of  the  instrument.  In  many 
instances,  I  repeat,  they  are  provisions  which  are 
too  much  dignified  by  places  in  the  organic  law, 
and  should  be  relegated  to  their  proper  rank,  as 
statutes.  For  instance,  is  there  room  to  doubt  that 
the  Legislature  might,  without  special  constitu- 
tional authority,  enact  game  and  fish  laws  ?  * 


*  It  is  only  just  to  the  Convention  of  1870  to  state  that  many 
of  these  enactments  on  matters  of  detail  and  of  inferior  im- 


156  CONSTITUTIONAL   HISTORY. 

I  have  said  in  effect,  that  the  Convention,  having 
been  called  ostensibly  to  revise  the  Constitution, 
adopted  the  policy  of  "  how  not  to  do  it."  If  this 
was  not  publicly  avowed,  it  was  indisputably  the 
sentiment  of  the  leaders,  which  was  made  effective 
by  their  personal  influence. 

The  exceptional  ability  and  prudence  of  the  Con- 
vention were  not  absolute  preventives  of  error. 
Certain  of  its  amendments  have  been  very  detri- 
mental. The  clause  regulating  the  militia  requires 
Legislative  action  before  the  Governor  can  invoke 
the  military  power.  The  result,  as  shown  in  the 
notorious  and  disastrous  Coal  Creek  riots,  was  to 
make  the  State  helpless  to  put  down  insurrection, 
and  therefore,  evading,  or  rather  overriding,  the 
Constitution,  we  have  created  an  Army  of  Tennes- 
see, as  distinguished  from  the  militia.  This  may 
be  condoned  as  an  emergent  and  indispensable 
measure,  made  necessary  by  the  unfortunate  clause 
under  consideration,  which  was  the  result  of  the 
apprehensions  of  the  Constitution  makers  that  con- 
ditions which  existed  at  the  close  of  the  war  might 
be  reproduced  in  the  future.  This  was  the  cause, 
also,  of  the  wiser  provision  as  to  habeas  corpus. 

portance  were  amendments  of  provisions  of  the  Constitution 
of  1834  on  the  same  subjects. 


THE   CONSTITUTION   OF   1870.  157 

The  militia  had  recently  been  called  out  by  the 
Governor,  upon  what  the  disfranchised  citizens 
considered  wholly  insufficient  cause,  and  the  writ 
of  habeas  corpus  had  been  arbitrarily  suspended. 

Notwithstanding  Judge  Nicholson's  declaration 
that  the  Constitution  would  have  to  be  renewed  in 
ten  years,  and  the  policy  of  the  Convention,  in  con- 
formity with  his  opinion,  more  than  twice  that 
time  has  now  elapsed,  and  not  a  single  change  has 
been  made.  But  this  does  not  prove  that  Mchol- 
son  and  his  associates  were  wrong.  They  foresaw 
that  the  new  order  of  affairs  would  demand  a  new 
Constitution,  but  they  did  not  know  that  the  people 
of  Tennessee  would  become  indifferent  to  their 
highest  interests;  that  selfish  and  absurd  dema- 
gogues would  be  heard  to  oppose  a  Constitutional 
Convention  on  the  ground  of  expense ;  that  power- 
ful corporate  interests  would  band  themselves 
against  it ;  that  an  innumerable  company  of  Jus- 
tices of  the  Peace  would  take  the  field  against 
it;  that  so  many  who  held  office  would  prefer 
self  to  duty.  The  Convention  of  1870  recognized 
its  inability  to  deal  with  a  future  of  untried  condi- 
tions. Its  members  were  men  of  the  old  regime. 
They  had  been  born  and  had  passed  their  lives  in 
slave-holding,  agricultural  Tennessee,  and  looking 


158  CONSTITUTIONAL    HISTORY. 

forward,  they  saw  every  thing  changed.  The  slave 
had  become  the  political  equal  of  his  former  mas- 
ter ;  the  white  man  was  impoverished ;  disaster, 
want,  and  gloom  were  on  every  hand  ;  a  new  indus- 
trial system  was  to  be  built  up ;  and  a  new  distri- 
bution of  lands  and  a  general  social,  industrial,  and 
political  readjustment  was  to  be  made.  Wisely 
admitting  its  own  limitations,  the  Convention  left 
to  a  new  generation  the  duty  of  adapting  the  or- 
ganic law  to  the  new  conditions. 

In  1895,  there  is  urgent  need  for  a  new  Constitu- 
tion, and  this  need  has  been  pressing  for  more  than 
a  decade,  but  the  people  are  indifferent,  while  the 
office-holders  are  fully  awake  to  their  own  interests. 

In  1834,  the  State  had  outgrown  its  old  Consti- 
tution, and  the  people  demanded  a  new  one.  The 
social  and  industrial  changes  between  1870  and 
1895  are  greater  in  number  and  more  radical  in 
quality  than  the  changes  between  1796  and  1834, 
and  there  is  more  need  for  a  new  Constitution  in 
1895  than  there  was  in  1834,  but  the  State  lags  be- 
hind all  her  sisters,  halting  under  the  burthen  of 
an  antiquated  and  injurious  system.  The  people 
have  been  going  on,  but  the  Constitution  has  stood 
still  for  sixty  years.  For  the  Constitution  of  1870 
is  the  Constitution  of  1834,  especially  in  those  pro- 


THE   CONSTITUTION   OF   1870.  159 

visions  which  most  directly  affect  the  commercial 
and  manufacturing  interests  of  the  State  and  the 
prosperity  of  its  cities. 

This  sketch  is  intended  to  be  historical,  and  not 
polemical,  but  the  discussion  of  the  defects  of  the 
Constitution  of  1870  can  not  be  out  of  place  in  a 
study  of  the  constitutional  history  of  the  State. 

The  illiberal  and  obstructive  system  of  taxation 
which  has  grown  up  in  Tennessee,  is  the  offspring 
of  legislation  produced  by  constitutional  provisions 
which  were  well  enough  in  1834,  but  are  vicious 
now.  There  can  be  no  relief  in  this  respect  with- 
out a  constitutional  declaration  of  true  principles 
of  taxation. 

The  history  of  cities  in  the  United  States,  proves 
that  the  right  of  local  assessment  for  local  improve- 
ments is  indispensable  to  healthy  municipal  develop- 
ment, but  the  Courts  have  declared  the  method  un- 
constitutional in  Tennessee. 

The  County  Court  as  now  constituted,  is  a  costly, 
injurious  and  absurd  survival  from  ancient  times, 
which  Tennessee,  almost  alone,  is  tolerating,  but  it 
is  intrenched  by  the  Constitution. 

Local  self-government  has  always  been  the  fav- 
orite phrase  and  theory  of  the  South,  but  I  repeat 
the  statement  made  above,  that  the  South  has  less 


160  CONSTITUTIONAL   HISTORY. 

of  local  self-government  than  any  other  section  of 
our  country,  and  there  is  no  Southern  State  that 
has  less  of  it  than  Tennessee.  If  the  City  of  Knox- 
ville,  situated  in  sight  of  the  Carolina  line,  would 
sell  a  hond  or  increase  its  municipal  tax  limit  it 
must  first  ask  the  consent  of  the  Legislature,  and 
in  deciding  the  question,  the  members  whose  homes 
are  on  the  Mississippi  River,  four  hundred  miles 
away,  have  as  much  voice  as  her  own  Representa- 
tives. By  no  possibility  could  a  town  in  Tennessee 
secure  the  largest  improvement  or  benefit  by  an  ex- 
emption of  any  thing  from  municipal  taxation. 

The  Counties  which  are  densely  populated,  need 
one  kind  of  road  and  fence  law,  and  the  sparsely 
settled  mountain  Counties  need  another  kind,  but 
as  it  is,  the  populous  suburbs  of  Nashville  and  of 
Memphis,  must  have  the  same  road  and  fence  laws 
as  the  trackless  mountains  of  East  Tennessee. 

The  sheep  raising  districts  need  a  dog  law,  but 
all  laws  must  be  general,  and  the  dog  is  radicated 
in  the  affections  of  the  mountain  Counties,  and  dog 
laws  there  beget  popular  uprisings,  and  the  sheep 
must  be  eaten  by  the  dogs,  because  the  Legislature 
dreads  the  wrath  of  the  mountaineers. 

The  immigrant  to  Tennessee  from  a  Northern  or 
Western  State,  finds  to  his  dismay,  that  every  hon- 


THE    CONSTITUTION    OF   1870.  161 

est  vocation  is  called  a  privilege,  and  is  roundly 
taxed.  The  privilege  tax  is  essentially  unjust,  and 
certainly  would  not  be  favorably  considered  by  a 
modern  constitutional  Convention. 

The  Courts  declare  themselves  unfriendly  to 
double  taxation,  but  every  lawyer  in  Tennessee 
knows,  that  statutes  have  been  held  constitutional 
which  create  double  taxation  in  fact,  whether  it  be 
so  in  law  or  not.  The  Constitution  should  be  made 
explicit,  and  double  taxation  prohibited. 

There  are  many  other  defects  in  the  Constitution, 
such  as  its  failure  to  provide  adequately  for  the  gu- 
bernatorial succession,  and  its  establishment  of 
grand  divisions  of  the  State,  with  the  result  of 
creating  much  unnecessary  and  absurd  sectional 
jealousy  and  prejudice. 

It  must  be  obvious,  however,  that  the  reforms 
most  needed  are  in  the  matters  of  taxation  and  of 
local  government.  Especially  do  the  cities  of  Ten- 
nessee stand  in  need  of  enlarged  powers  of  self- 
government. 

James  Phelan,  the  latest  historian  of  Tennessee, 
whose  best  work  is  upon  the  subject  of  our  State 
"Institutes,"  declares  that:  "In  Tennessee  we 
have  within  the  limits  of  a  century,  a  picture  of 
national  life,  as  complete  as  that  of  England, 


162  CONSTITUTIONAL     HISTORY. 

through  its  two  thousand  years,  or  that  of  Rome, 
from  the  Kings  to  the  Emperors." 

If  it  be  admitted  that  this  is  an  extreme  state- 
ment, it  is  true  that  the  history  of  Tennessee  ex- 
hibits a  process  of  natural  and  orderly  social  and 
political  evolution.  There  is  probably  no  State  in 
the  Union  whose  population  is  more  homogeneous. 
There  is  no  State  whose  social  and  political  insti- 
tutions can  be  more  directly  or  certainly  traced  to 
English  originals,  nor  whose  development  has  pro- 
ceeded more  consistently  along  the  lines  of  the 
purest  Anglo-Saxon  principles. 

Socially  and  politically,  and  we  may  almost  say 
ethnically,  Tennessee  is  as  much  Saxon  as  England 
itself. 

The  continued  ascendancy  of  the  class  which  first 
settled  in  Tennessee  has  given  to  the  history  of  the 
State  a  distinct  quality,  an  exceptional  unity,  and 
completeness. 

The  institutional  history  of  the  State  is  excep- 
tionally interesting  and  important  on  account  of 
the  unique  experiments  of  Watauga,  Cumberland, 
and  Franklin,  and  of  the  natural  and  unbroken  de- 
velopment of  Anglo-Saxon  political  principles  since 
the  establishment  of  the  State. 

The  Constitution  of  1796  was  probably  the  "  least 


-  CONSTITUTION  OF  1870.  163 

imperfect  and  most  republican  "  of  its  time.  The 
Constitution  of  1834  was  a  natural  and  true  ex- 
pression of  the  political  and  social  life  of  the  State 
at  that  time.  If  the  Constitution  of  1870  is  to-day 
justly  declared  to  be  insufficient  and  even  posi- 
tively obstructive,  it  is  because  the  people  have 
outgrown  it,  just  as  in  1834  they  had  outgrown 
the  Constitution  of  1796. 

The  fact  that  the  organic  law  of  the  State  is  in- 
adequate to  existing  needs,  does  not  prove  a  want 
of  progress  on  the  part  of  the  people.  The  people 
have  simply  passed  beyond  that  stage  of  corporate 
life,  to  which  the  Constitution  in  its  present  form  is 
adapted.  The  coming  Convention  will  amend  the 
Constitution  to  meet  the  new  and  larger  require- 
ments of  the  time.  The  State  has  grown  in  wealth  ; 
her  commercial  relations  and  activities  have  in- 
creased ten-fold ;  mines  and  manufactories  multiply 
constantly ;  four  large  and  growing  cities  are  cen- 
ters of  important  and  expanding  trade;  railroads 
run  in  all  directions;  above  all,  the  gratifying  re- 
sults of  an  efficient  system  of  education  are  visible 
on  every  hand.  The  demand  which  these  condi- 
tions make  for  a  new  and  adequate  Constitution  can 
not  long  be  resisted. 


APPENDIX.  165 


APPENDIX. 


OFFICERS  AND  MEMBERS  OF  THE  FIRST  FRANK- 
LIN CONVENTION,  AND  OF  THE  TENNESSEE 
CONVENTIONS. 

I. 

THE  FIRST  FRANKLIN  CONVENTION,  AUGUST,  23,  1784. 
President,  John  Sevier ;  Secretary,  Landon  Carter. 

Washington  County:  John  Sevier,  Charles  Robertson, 
William  Purphey,  Jos.  Wilson,  John  Irvin,  Samuel  Hous- 
ton, William  Trimble,  William  Cox,  Landon  Carter^ 
Hugh  Henry,  Christopher  Taylor,  John  Chisholm,  Samuel 
Doak,  William  Campbell,  Benjamin  Holland,  John  Bean, 
Sam  Williams  and  Richard  White. 

Sullivan  County:  Joseph  Martin,  Gilbert  Christian, 
Wm.  Cocke,  John  Manifee,  William  Wallace,  John 
Hall,  Sarnl.  Wilson,  Stockley  Donelson,  and  William 
Evans. 

Greene  County :  Danl.  Kennedy,  Alexander  Outlaw, 
Jos.  Gist,  Samuel  Weir,  Asahel  Rawlings,  Jos.  Ballard, 
John  Maughon,  John  Murphy,  David  Campbell,  Archi- 


166  APPENDIX. 

bald   Stone,   Abraham    Denton,   Charles    Robinson    and 
Elisha  Baker. 

II. 

THE  CONVENTION  OF  1796. 
President,  Win.  Blount ;  Secretary,  Wm.  Maclin. 

Davidson  County:  John  McNairy,  Andrew  Jackson, 
James  Robertson,  Thos.  Hardeman,  Joel  Lewis. 

Blount  County:  David  Craig,  James  Greenaway, 
Joseph  Black,  Samuel  Glass,  James  Houston. 

Greene  County:  Saml.  Frazier,  Stephen  Brooks,  Wm. 
Raukin,  Elisha  Baker,  John  Galbraith. 

Hawkins  County  ;  Jas.  Berry,  Joseph  McMinn,  Thomas 
Henderson,  William  Cocke,  Richard  Mitchell. 

Jefferson  County  :  Alexander  Outlaw,  Jos.  Anderson, 
George  Doherty,  James  Roddye,  Archibald  Roane. 

Knox  County :  James  White,  William  Blount,  Charles 
McClung,  John  Crawford,  John  Adair. 

Sullivan  County :  George  Rutledge,  Wm.  C.  C.  Clai- 
borne,  Richard  Gammon,  John  Shelby,  John  Rhea. 

Sumner  County  :  David  Shelby,  Isaac  Walton,  William 
Douglass,  Edward  Douglass,  Daniel  Smith. 

Sevier  County :  Peter  Bryan,  Saml.  Wear,  Spencer 
Clack,  John  Clack,  Thos.  Buckingham. 

Tennessee  County :  Thos.  Johnston,  James  Ford,  Wm. 
Fort,  Wm.  Prince,  Robert  Prince. 


APPENDIX.  167 

Washington   County:    John    Tipton,   Saml.    Handley, 
Leroy  Taylor,  Landou  Carter,  James  Stuart. 


III. 

THE  CONVENTION  OF  1834. 
President,  William  B.  Carter;  Secretary,  William  K.  Kill. 

From  the  District  composed  of  the  County  of  Carter, 
William  B.  Carter. 

From  Washington  County  :  Matthew  Stepheuson. 

From  Sullivan  County  :  Abraham  McClellan. 

From  Greene  County  :  Robert  J.  McKinney. 

From  Knox  County  :  Joseph  A.  Mabry. 

From  Hawkins  County  :  John  A.  McKinney. 

From  Blonnt  County  :  James  Gillespie. 

From  Monroe  County  :  Bradley  Kimbrough. 

From  McMinn  County  :  John  Neal. 

From  Roane  County :  James  I.  Greene. 

From  White  County:  Richard  Nelson. 

From  Jackson  County  :  James  W.  Smith. 

From  Warren  County  :  Isaac  Hill. 

From  Franklin  County  :  George  W.  Richardson. 

From  Robertson  County  :  Richard  Cheatham. 

From  Montgomery  County  :   Willie  Blount. 

From  Henderson  County  :  John  Purdy. 

From  Carroll  County  :  Ennis  Ury. 

From  Madison  County  :  Adam  Huntsman. 


168  APPENDIX. 

From  Hardeman  County :  Julius  C.  N.  Robertson. 

From  Fayette  County  :  West  H.  Humphreys. 

From  Shelby  County :  Adam  R.  Alexander. 

From  Henry  County  :  Peter  Kendall. 

From  the  district  composed  of  the  Counties  of  Cocke  and 
Sevier  :  William  C.  Roadman. 

From  the  Counties  of  Rhea  and  Hamilton  :  William  T. 
Senter. 

From  the  Counties  of  Bledsoe  and  Marion  :  John  Kelly. 

From  the  Counties  of  Overton  and  Fentress  :  Hugh  C. 
Armstrong. 

From  the  Counties  of  Smith  and  Sumner :  John  J. 
White,  Robert  Allen,  and  Isaac  Walton. 

From  the  County  of  Rutherford  :  William  Ledbetter 
and  Henry  Ridley. 

From  the  County  of  Bedford :  Joseph  Kincaid  and 
Jonathan  Webster. 

From  Maury  County  :  Terry  H.  Cahal  and  Robert  L. 
Cobbs. 

From  Williamson  County  :  Newton  Cannon  and  Will- 
iam G.  Childress. 

From  Davidson  County  :  Francis  B.  Fogg  and  Robert 
Weakley. 

From  Wilson  County  :  Burchett  Douglass  and  Robert 
M.  Burton. 

From  the  Counties  of  Lincoln  and  Giles :  James  Fulton, 
Andrew  A.  Kincannon,  and  Thomas  C.  Porter. 


APPENDIX.  169 

-"From  the  Counties  of  Washington,  Greene,  Sevier, 
Cocke,  Blount,  Monroe,  and  McMinn  :  John  MeGaughey. 

From  the  Counties  of  Campbell,  Claiborne,  Grainger, 
and  Jefferson :  Calloway  Hodges,  Richard  Bradshaw,  and 
Gray  Garrett. 

From  the  Counties  of  Warren  and  Franklin  :  William 
C.  Smartt. 

From  the  Counties  of  Hickman,  Lawrence,  and  Wayne : 
Boling  Gordon  and  Henry  Sharp. 

From  the  Counties  of  Perry,  Hardin,  and  McNairy  : 
James  Scott  and  Maclin  Cross. 

From  the  Counties  of  Gibson  and  Dyer :  Nelson  J. 
Hess. 

From  the  Counties  of  Haywood  and  Tipton  :  William 
H.  Loving. 

From  the  Counties  of  Weakley  and  Obion  :  G.  W.  L. 
Marr. 

IV. 

THE  CONVENTION  OF  1870. 

President,  John    C.   Brown;   Secretary,  T.   E.   S.   Russ- 
wurm. 

From  the  County  of  Bedford  :  T.  B.  Ivie. 
l/^rom  the  County  of  Blount :  W.  H.  Finley. 
From  the  County  of  Bradley  :  S.  P.  Gaut. 
From  the  County  of  Cannon  :   Warren  Cummings. 
From  the  County  of  Carroll :  W.  M.  Wright. 


170  APPENDIX. 

From  the  County  of  Claiborne  :  P.  G.  Fulkerson. 
From  the  County  of  Cocke  :  M.  McNabb. 
From  the  County  of  Davidson  :  Neill  S.  Brown  and  John 
C.  Thompson. 

From  the  County  of  DeKalb  :  Jos.  H.  Blackburn. 
From  the  County  of  Dickson :  Thomas  C.  Morris. 
From  the  County  of  Fayette :  E.  H.  Shelton. 
From  the  County  of  Franklin  :  Jesse  Arledge. 
From  the  County  of  Gibson  :  Sparrel  Hill. 
From  the  County  of  Giles :  Thomas  M.  Jones. 
From  the  County  of  Grainger:  James  W.  Branson. 
From  the  County  of  Greene :  James  Britton. 
From  the  County  of  Hamilton  :  Richard  Henderson. 
From  the  Couuty  of  Hardeman  :  James  Fentress. 
From  the  County  of  Hardin :  A.  G.  McDougal. 
From  the  County  of  Hawkins :  John  Netherland. 
From  the  County  of  Hay  wood,  George  C.  Porter. 
From  the  County  of  Henderson :  Jno.  M.  Taylor. 
From  the  County  of  Henry :  James  D.  Porter,  Jr. 
From  the  County  of  Hickman  :  Boiling  Gordon. 
From  the  County  of  Jackson  :  Richard  P.  Brooks. 
From  the  County  of  Jefferson  :  Wm.  Sample. 
From  the  County  of  Knox  :  John  Baxter. 
From  the  County  of  Lawrence :  T.  D.  Davenport. 
From  the  County  of  Lincoln :  Geo.  W.  Jones. 
From  the  County  of  Madison :  Alexander  W.  Campbell. 
From  the  County  of  Marion  :  Wm.  Byrne. 


APPENDIX.  171 

From  the  County  of  Marshall :  Richard  Warner,  Jr. 

From  the  County  of  Maury :  W.  V.  Thompson. 

From  the  County  of  McNairy :  Jno.  H.  Meeks. 

From  the  County  of  McMinn  :  A.  Blizzard. 

From  the  County  of  Monroe :  James  A.  Coffin. 

From  the  County  of  Montgomery :  D.  N.  Kennedy. 

From  the  County  of  Obion :  Chas.  N.  Gibbs. 

From  the  County  of  Overton :  Z.  R.  Chowning. 

From  the  County  of  Roane  :  W.  B.  Staley. 

From  the  County  of  Robertson  :  John  E.  Garner. 

From  the  County  of  Rutherford  :  John  W.  Burton. 

From  the  County  of  Stewart :  Nathan  Brandon. 

From  the  County  of  Sullivan :  W.  V.  Deaderick. 

From  the  County  of  Sumner :  James  J.  Turner. 

From  the  County  of  Shelby :  William  H.  Stephens  and 
Jos.  B.  Heiskell. 

From  the  County  of  Smith  :  John  Allen. 

From  the  County  of  Warren  :  H.  L.  W.  Hill. 

From  the  County  of  Washington  :  S.  J.  Kirkpatrick. 

From  the  County  of  Wayne :  Robt.  P.  Cypert. 

From  the  County  of  Weakley :  John  A.  Gardner. 

From  the  County  of  White  :  Geo.  G.  Dibbrell. 

From  the  County  of  Wilson  :  S.  G.  Shepard  and  W.  H. 
Williamson. 

From  the  County  of  Williamson  :  Samuel  S.  House. 

From  the  Counties  of  Carter  and  Johnson  :  W.  B.  Car- 
ter. 


172  APPENDIX. 

From  the  Counties  of  Greene,  Hawkins,  Hancock,  and 
Jefferson  :  A.  A.  Kyle. 
1     From  the  Counties  of  Knox  and  Sevier :  Jos.  A.  Mabry. 

From  the  Counties  of  Anderson  and  Campbell:  Henry 
R.  Gibson. 

From  the  Counties  of  Scott,  Morgan,  and   Fen  tress : 
James  C.  Parker. 

From  the  Counties  of  Polk,  McMinn,  and  Meigs:  T.  M. 
Burkett. 

From  the  Counties  of  Rhea,  Bledsoe,  Hamilton,  and 
Sequatchie  :  D.  M.  Key. 

From  the  Counties  of  Grundy,  Coffee,  and  Van  Buren : 
Matt.  Martin. 

From   the   Counties   of  Smith,  Sumner,   and   Macon : 
George  E.  Seay. 

From  the  Counties  of  Davidson,  Robertson,  and  Mont- 
gomery :  John  F.  House. 

From  the  Counties  of  Rutherford  and  Bedford :  John 
E.  Dromgoole. 

From  the  Counties  of  Lincoln,  Marshall,  and  Giles: 
Jno.  C.  Brown. 

From  the  Counties  of  Williamson,  Maury,  and  Lewis : 
A.  O.  P.  Nicholson. 

From  the  Counties  of  Benton  and  Humphreys :  W.  F. 
Doherty. 

From   the   Counties  of   Perry  and  Decatur :    G.    W. 
Walters. 


APPENDIX.  173 

From  the  Counties  of  Carroll,  Gibson,  Madison,  and 
Henry :  James  S.  Brown. 

From  the  Counties  of  Dyer  and  Lauderdale :  A.  T. 
Fielder. 

From  the  Counties  of  Tipton,  Shelby,  and  Fayette : 
Humphrey  R.  Bate. 


INDEX. 


American,  race,  31 ;  sentiment,  31,  32. 

Attorney-General,  Constitution  of  1796,  94;  Constitution  of 
1834,  114,  125;  Constitution  of  1870,  154. 

Balch,  Hezekiah,  55,  88. 

Bancroft,  George,  2 ;  quoted,  11. 

Barton,  S.,  47. 

Baxter,  John,  148. 

Bean,  William,  17. 

Blizzard,  A.,  149. 

Brown,  Jacob,  17;  John  C.,  147;  Mrs.  John  C.,  preface;  Neill 

S.,  148. 

Brown's  Settlement,  18. 
Blount,  William,  83,  84,  85,  86,  88,  121. 
Blount,  Willie,  61,  62,  121,  123,  142,  144. 
Burton,  John  W.,  149. 
Bryce,  James,  2. 

Cahal,  T.  H.,  135. 

Calvinism,  12;  influence  of,  in  Houston  Constitution,  63. 

Campbell,  Alexander  W.,  149 ;  Douglas,  2,  3,  7,  note. 

Cannon,  N.,  144. 

Carroll,  William,  123,  134. 

Captain's  Company,  basis  representation  first  Franklin  Con- 
vention, 54;  elected  Justices  under  Constitution  of  1796, 
94. 

Carter,  John,  12,  13,  17;  Landon,  54;  William  B.,  144. 

Carrick,  Samuel,  85,  88. 

Census  of  1795,  84. 

Cession  Act,  of  1784,  49 ;  repealed,  52 ;  Act  of  1790,  82. 

(175) 


176  INDEX. 

Clerks  of  Courts,  94,  115. 

Cocke,  William,  64,  83,  86,  87,  102. 

Committee  of  Thirteen,  Watauga,  17. 

Common  law,  enacted  in  North  Carolina,  79 ;  in  force  in  Ten- 
nessee, 79,  note. 

Comptroller,  made  Constitutional  officer,  154. 

Confederation,  in  debt,  48 ;  asks  for  unoccupied  lands,  48,  49. 

Connecticut,  Fundamental  Orders  of,  25. 

Constable,  94,  115. 

Constitution,  of  Franklin,  64;  of  1796,  73-108;  of  1834,  109- 
144;  of  1870,  145-163;  of  North  Carolina,  81,  82,  96. 

Coroner,  94,  116. 

County,  origin  of,  74 ;  officers  of,  in  Tennessee,  94,  103,  104, 
114,  115;  area  of,  in  Tennessee,  115,  117;  how  to  lend 
credit,  153;  Court,  330,  159. 

Court,  of  Five,  in  Watauga,  17 ;  of  Quarter  Sessions,  76 ;  of 
Province  of  North  Carolina,  77 ;  County,  of  Tennessee,  76, 
130,  159;  Supreme,  of  Tennessee,  99,  109,  114;  made  Con- 
stitutional, 114;  history  of,  127;  Chancery,  of  Tennessee, 
history  of,  128 ;  made  Constitutional,  154 ;  Circuit,  of  Ten- 
nessee, 130;  made  Constitutional,  154;  Supreme,  of  IT.  S., 
93,  94,  99. 

Cumberland,  34  ;  Compact,  36-47 ;  date  of  Compact,  36 ;  Com- 
pact quoted,  37 ;  regulates  land  matters,  39 ;  Arbitrators, 
39;  suffrage  in,  39-40;  the  Court,  40-41;  Compact  com- 
pared with  Watauga  Articles,  43 ;  its  Anglican  quality,  44. 

Davidson  County,  created,  47;  did  not  join  State  of  Frank- 
lin, 56. 

Debt,  imprisonment  for,  61,  97  ;  State,  121,  123,  note. 
Dibbrell,  G.  G.,  149. 
Dickinson,  J.  M.,  92. 
Divorce,  118. 
Doak,  Samuel,  65,  88. 
Donelson,  Stockley,  83. 
Dueling,  116,  117. 
Dutch,  influence  of  in  America,  2. 


INDEX.  177 

East  Tennessee,  originally  an  unoccupied  hunting  ground,  8; 

favors  creating  a  State  in  1795,  85. 

Education,  Houston  Constitution  provides  for,  63 ;  124,  125. 
Electors,  of  President,  how  first  chosen  in  Tennessee,  107. 
Emancipation,  in  Convention  of  1834,  134,  135,  136,  137,  138, 

139,  140. 
Ewin,  Andrew,  47. 

Fence  laws,  160. 

Fentress,  J.,  149. 

Fiske,  John,  2,  5,  25,  26,  73,  80. 

Fogg,  F.  B.,  144. 

Frankland,  the  name  rejected,  55. 

Franklin,  State  of,  48-72;  its  importance  overestimated,  48; 
people  unfriendly  to  North  Carolina,  49 ;  opposition  to  Ces- 
sion of  1784,  49;  opinion  as  to  Cession  Act  of  1784,  50,  51 ; 
movement  justifiable  at  first,  52 ;  unwise  after  repeal  of 
Cession  Act,  53 ;  the  rejected  Houston  Constitution,  57-64 ; 
adopts  Constitution  of  North  Carolina,  55 ;  financial  sys- 
tem, 65-66  ;  disturbances  in,  68 ;  forbearance  of  the  people, 
69 ;  the  end  of  Franklin,  68. 

Freeland,  George,  47. 

Freeman,  E.  A.,  2,  46,  note. 

Free  Negroes,  could  vote  under  Constitution  1796,  93 ;  but  not 
under  Constitution  1834,  93,  113;  Convention  of  1834 
summarily  disfranchises  them,  144. 

French,  in  Illinois,  compared  with  Watauga  settlers,  10. 

Fundamental  Constitutions  of  Carolina,  76. 

Gardner,  John  A.,  149. 
Gardoqui,  Diego,  69,  71. 
Gibson,  H.  R.,  149,  150. 

Governor,  State  of  North  Carolina,  78 ;  Tennessee  under  Con- 
stitution of  1796,  92,  98;  under  Constitution  of  1834,  113. 
Grand  divisions  of  Tennessee,  161. 
Greeneville,  Capital  of  Franklin,  54. 


178  INDEX. 

Habeas  Corpus,  153. 

Hay  wood,  John,  historian  of  Tennessee,  16,  34,  54,  64. 

Henderson,  Richard,  41,  42. 

Heiskell,  J.  B.,  148. 

Henry,  William  VVirt,  46,  note. 

Hill,  Sparrell,  149. 

Holston,  people  south  of,  form  a  government,  45 ;  its  Constitu- 
tion quoted,  45. 

Homestead  exemption,  152. 

House,  John  F.,  148. 

Houston,  Rev.  Samuel,  54,  55 ;  his  Constitution  for  Frank- 
land  rejected,  55 ;  that  Constitution  discussed,  57-64. 

Humphreys,  West  H.,  119,  144. 

Illiteracy,  23. 

Imprisonment  for  debt,  61,  97  ;  abolished,  97,  note. 

Improvements,  internal,  121,  122,  123. 

Institutions,  American  derived  from   England,  1,  2 ;  of  New 

England,    3;    of   North  Carolina,  6;    of   Tennessee    are 

Anglo-Saxon,  15;  of  Virginia,  3. 
Isbell,  Z.,  17,  35. 

Jackson,  Andrew,  86,  132. 

Jefferson,  Thomas,  80,  100,  106. 

Jones,  John,  17;  T.  M.,  149. 

Jonesboro,  meeting  place  of  two  Franklin  Conventions,  54. 

Judges,  of  Tennessee  Constitution  of  1796,  how  elected  and 
term,  94,  125;  impeachments  of,  126;  Constitution  1834, 
114 ;  Constitution  of  1870,  154. 

Judicial  system,  Constitution  1796,  93;  Constitution  of  1834, 
114. 

Justices  of  the  Peace,  59,  60 ;  first  appointed  in  England,  75 ; 
in  Province  of  North  Carolina,  77  ;  in  Tennessee,  Constitu- 
tion of  1796,  94;  Constitution  of  1834,  115;  Constitution 
of  1870,  154. 

Kentucky,  separatist  leaders  in,  71. 
Key,  David  M.,  148. 


INDEX.  179 

Lawyers,  popular  dislike  of,  62. 

Legislature,  of  Franklin,  65;  of  Tennessee,  excessive  powers 

under  Constitution  of  1796,  93,  94;  qualifications  for,  under 

Constitution  of  1796,  91 ;  under  Constitution  of  1834,  110; 

provisions  of  Constitution  of  1870,  153. 
Linsey,  Isaac,  49. 
Local  Government,  in  New  England  and  in  Virginia,  4-5 ;  in 

North  Carolina,  76  ;  in  England,  72-76  ;  in  Tennessee,  79, 

153. 

Locke,  John,  8,  76. 
Lotteries,  119. 
Lucas,  Robert,  17,  35. 

Macaulay,  T.  B.,  quoted,  46,  note. 

Maine,  Sir  H.,  2. 

Malone,  James  H.,  preface. 

Martin  Academy,  65. 

Mauldin,  J.,  47. 

Mayflower  Compact,  25. 

Members,  of  first  Franklin  Convention,  list  of,  165;  Conven- 
tion of  1796,  166  ;  Convention  of  1834,  167  ;  Convention  of 
1870,  169. 

Middle  Colonies,  institutions  and  Dutch  influence  in,  3. 

Militia,  under  Constitution  of  1796,  94 ;  under  Constitution  of 
1870,  154. 

Miro,  Estevan,  70. 

Molloy,  Thomas,  47. 

Morgan,  W.  S.,  preface. 

Municipal  taxation,  159. 

McKinney,  John  A.,  136,  138 ;  Robert  J.,  138,  144. 

Maclin,  William,  clerk  Convention,  1796,  85. 

McMinn,  Joseph,  83,  101,  102. 

McNairy,  John,  85,  86,  101. 

McClung,  Charles,  85,  86;  draftsman  of  Constitution  of  1796, 
86;  mentioned,  87,102. 

Nash  borough,  36. 


180  INDEX. 

Netherland,  John,  148. 

New  England,  institutions  of,  3 ;  purposes  of  the  people,  4 ; 
township  in,  5. 

Nicholson,  A.  0.  P.,  148,  150,  151,  157  ;  Hunter,  150;  preface. 

Nolichucky  settlement,  18. 

North  Carolina,  institutions  and  people  of,  6 ;  Colonial  Gov- 
ernment inefficient,  9,  50  ;  Virginia  line  run,  9  ;  denounced 
in  Franklin,  49  ;  judicial  and  military  system  not  extended 
to  Franklin  Counties,  50  ;  first  Cession  of  Tennessee,  48,  49, 
50,  51 ;  repealed,  52  ;  its  Constitution  adopted  by  Franklin, 
55  ;  local  government  in,  76  ;  Provincial  system,  76,  77,  78; 
State  government,  81,  82  ;  second  Cession  of  Tennessee,  82. 

Phelan,  James,  historian  of  Tennessee,  30,  44,  49,  51,  81,  100, 

104,  105;  his  valuable  work  in  institutional  history,  106, 

note ;  mentioned,  107,  161. 
Poll  Tax,  Constitution  of  1796,  92;  Constitution  of  1834,  111 ; 

Constitution  of  1870,  154. 

Population  in  1784,  49  ;  in  1795,  84  ;  in  1834,  113. 
Porter,  James  D.,  148. 
Precinct,  substitute  for  County,  76. 
Presbyterians,  13,  14. 
Press,  freedom  of,  61,  98. 
Privilege  Tax,  160,  161. 
Property  qualification,  91,  93. 
Protestants,   they  only  could  hold  office  in  North  Carolina 

under  Constitution  of  1776,  96,  97. 
Putnam,  A.  W.,   historian  of  Middle   Tennessee,  35,  36,  37; 

quoted,  37,  38. 

Eamsey,  F.  A.,  54 ;  J.  G.  M.,  historian  of  Tennessee,  17,  19,  21, 

27,  28,  45,  64,  66. 
Ranger,  94,  116. 
Reclus,  E.,  46,  note. 
Register,  94,  116. 
Religious  Liberty,  in  Watauga,  11,  20;  in  Cumberland,  44;  in 

Franklin,  60,  96;  under  Tennessee  Constitution  of  1796, 

95  ;  in  North  Carolina,  96. 


INDEX.  181 

Rhea,  John,  86. 

Road  Laws,  160. 

Robertson,  Charles,  17 ;  James,  12,  13,  16,  17,  22,  34,42,47; 
corresponded  with  Spaniards,  69 ;  attitude  toward  Frank- 
lin, 72;  toward  Spain,  72. 

Roosevelt,  Theodore,  10,  15,  17,  19,  21,  24,  27,  44,  69;  on  the 
separatist  movement,  69,  72  ;  mentioned,  70,  71. 

Rounsevall,  D.,  47. 

Russell,  George,  17. 

Rutherford,  Griffith,  83. 

Rutledge,  George,  101. 

Sanford,  E.  T.,  preface. 

Schools,  Public,  124,  125. 

Scotch-Irish,  are  Teutons,  6,  46;  their  democracy,  6;  came 
principally  to  Philadelphia  and  Charleston,  7;  of  the 
English  political  family,  7  ;  the  course  of  their  migrations,  7, 
8;  dominated  Watauga,  12;  their  political  principles 
soundest  Anglo-Saxon,  14 ;  their  individualism,  14 ;  not 
illiterate,  23,  note ;  they  settle  Cumberland,  35 ;  their  in- 
fluence in  Franklin,  63,  64. 

Seay,  George  E.,  149. 

Separatist!  movement,  69,  72. 

Sevier,  John,  was  essentially  a  Saxon,  12 ;  not  learned  nor  studi- 
ous, 13:  on  the  Watauga  Committee  and  Court,  17;  Brig- 
adier-General, 53;  President  Franklin  Conventions,  54; 
Governor  of  Franklin,  65;  in  misfortune,  68;  arrested  for 
treason,  68 ;  correspondence  with  Spaniards,  69 ;  in  Legis- 
lative Council  of  the  Territory,  83. 

Sheriff,  94,  115,  116. 

Slavery  in  Virginia,  5. 

Slaves  in  Tennessee  in  1795,  85 ;  in  1834,  113. 

Special  legislation,  120. 

Staley,  W.  B.,  149. 

State  debt,  121,  123,  note. 

Stephens,  W.  H.,  148. 


182  INDEX. 

Suffrage  in  Watauga,  20;  in  Cumberland,  44;  in  Franklin,  62; 

Constitution  of  1796,  93;  Constitution  of  1834,  113,  114. 
Supreme  Court,  of  United  States,  93,  94,  99 ;  of  Tennessee,  99, 

109,  114,  154;  history  of,  127. 
Swaney,  W.  B.,  preface. 

Tatham,  W.,  17,  35. 

Tatom,  W.  C.,  preface. 

Taxation,  Constitution  of  1796,  92,  101,  102:  Constitution  of 
1834, 110,  111 ;  present  system  wrong,  159, 161;  double,  161. 

Taylor,  Hannis,  1,  2;  Parmenas,  83. 

Tennessee,  County  of,  85 ;  State  belonged  to  North  Carolina, 
6 ;  origin  of  political  institutions,  15,  79 ;  Territory  of  ceded 
by  North  Carolina,  48 ;  the  Cession  repealed,  52 ;  the 
second  Cession,  82;  Territory  South  of  River  Ohio  formed, 
82 ;  territorial  government,  83 ;  Blount,  Governor,  83 ; 
census  of  1795,  84;  adopts  Constitution  of  North  Caro- 
lina, 89;  condition  of,  in  1834,  109-113;  condition  in  1870, 
146 ;  has  outgrown  the  Constitution  of  1870,  158 ;  the  peo- 
ple homogeneous,  162  ;  importance  and  interest  of  her  in- 
stitutional history,  163. 

Territory  South  of  River  Ohio  created,  82  ;  organization  of,  82, 
83;  Assembly  of,  84;  population,  84. 

Tipton,  John,  67,  83,  86. 

Titus,  E.,  47. 

Trustee,  94,  115,  116. 

Turner,  J.  J.,  149. 

Universal  suffrage,  11,  44,  62. 

Veto,  152. 

Virginia,  people  and  institutions,  3 ;  climate  and  soil,  4 ;  to- 
bacco and  slavery,  5 ;  modern  English  institutions,  5. 

Washington  County,  North  Carolina,  created,  23. 
Watauga,  first  settlers,  9 ;  not  favored  by  North  Carolina,  9  ; 
character  of  settlers,  10 ;  they  make  a  State,  10. 


INDEX.  183 

Watauga  Association,  the,  a  Teutonic  institution,  11 ;  Bancroft 
on,  11 ;  Hay  wood  on,  16 ;  Committee  and  Court,  17 ;  Roose- 
velt's opinion,  17;  Constitution  of,  16-33;  adopts  laws  of 
Virginia,  20;  records  lost  or  destroyed,  21,  note  ;  military 
establishment,  22 ;  exercises  functions  of  sovereignty,  27 ; 
its  historic  importance,  29 ;  patriotism  of  the  people,  28. 

Weakley,  R.,  144. 

Western  States,  their  influence  on  institutional  development, 
133. 

White,  Hugh  L.,  117;  James,  83,  85,  87. 

Williamson,  W.  H.,  149. 

Wilson  Woodrow,  8,  131. 

Winchester,  James,  83. 

Wright,  Marcus  J.,  preface. 


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